Speech given at the Mises Circle in Chicago on April 9, 2011. The video and audio recordings are available through Mises.tv.

Is there hope for liberty in our lifetime? It’s tempting to think so.

As I discuss in the first part of my book, Libertarianism Today, libertarianism used to be of interest only to a tiny handful of people scattered across the country. As I’ve heard Walter Block and others say, if you were in the libertarian movement a few decades ago, it was easy to feel like you knew almost everyone else in the movement.

This was even true to a considerable extent when I first became involved in libertarianism about 15 years ago. I only discovered libertarianism because I happened to know someone who saw that I was interested in political ideas (conservative ones at the time) and suggested that I subscribe to The Freeman magazine published by the Foundation for Economic Education. But of course most people didn’t know anyone who could recommend The Freeman to them, and they almost certainly didn’t hear about libertarianism on television, in their schools, or in any major periodicals, apart from Henry Hazlitt’s Newsweek column.

Now, of course, everything has changed. You meet people who call themselves libertarians everywhere. And, sure, some of them don’t necessarily understand what that means, but it’s remarkable that they even know the word "libertarianism." And what’s really remarkable is how many of them do know what it means. I’ve done some speaking at law schools across the country over the past year, and I’ve been surprised by students who come up to me and start telling me that they read LewRockwell.com every day, that they’re reading books about Austrian economics by Murray Rothbard from the Mises Institute. Even when I was in law school less than a decade ago, this was unheard of.

There are two big factors that have contributed to this, and each has built on the other: one is the Internet, and the other is Ron Paul.

When Ron Paul ran for president in 2008, the mainstream media almost entirely ignored him, but a hard core of supporters got his name out on the Internet, and people learned about him that way. Eventually his growing group of supporters raised enough money for him on the Internet to bring him to the mainstream media’s attention, and now it seems like we see Ron Paul on national television almost every day. So people started listening to Ron Paul, and Ron Paul sent them back to the Internet to learn more about the ideas he was espousing related to Austrian economics and liberty. Specifically, he directed people to the Mises Institute, which had been promoting these ideas consistently – particularly those related to war and the Federal Reserve – in a way that no other institution has, and which was ready with a massive library of educational material online.

Again, to anyone who’s been around the libertarian movement for more than a few years, this is all amazing – something that, even five years ago, I couldn’t have imagined.

So when you look at this explosion of growth that we’ve had as a movement, and when you look at the growing antigovernment sentiment that many people seem to have, it’s tempting to think that we really have a shot at seeing a more libertarian society here in the United States in our lifetimes.

But there’s a quote from Ayn Rand that is relevant here: "It’s earlier than you think." In other words, even though it seems like we’ve come a long way in the struggle for liberty, and even though it seems like it should be obvious to the world that they should cast off the state that’s oppressing them, in fact there’s a whole lot more to be done, and it may be a very long time before we see success – if we ever do.

How will we get from here to there? What can we do to get there as fast as possible? Let’s consider a couple of things that some people think we should do that I believe won’t work, and then we’ll look at what does work.

Americans Aren’t Libertarians

Some people think electoral politics is the way to go.

And there’s one way in which electoral politics certainly can be helpful to the cause: as an educational platform. Murray Rothbard favored the creation of the Libertarian Party because he thought, quite reasonably, that it would be a good way to spread the libertarian message to people who only pay attention to political ideas every four years when there’s a presidential election. And the Libertarian Party has done that with varying degrees of success over its history. And of course Ron Paul did that with great success in 2008. That’s fine.

What’s not fine for advancing liberty is trying to run candidates for major offices with the idea of actually winning the Presidency or seats in Congress – because you’re not going to win any elections with a libertarian message. You can point to Ron Paul winning a seat in Congress, but Ron Paul is the exception to a great many rules. As Lew Rockwell says, "There is only one Ron Paul."

The reality is that the overwhelming majority of people in America, and in every state and every city, are not libertarians and aren’t even close to being libertarians.

David Kirby and David Boaz of the Cato Institute have published research in which they use polling data to estimate that 14 percent of voters are libertarians. Unfortunately, that number is far too high. If you look at the questions they asked in their polling to determine whether someone is a libertarian, they’re just a few very broad questions about people’s attitudes toward government and the market.

There’s nothing in the questions that would give you any idea of where those people stand on some of the most important issues of our time, such as war, the police state, and the Federal Reserve, to name just a few things that aren’t covered. If the poll had asked about those things and defined "libertarian" more like members of the libertarian movement define it, we’d see that the percentage of the population we could reasonably count as libertarian is much lower.

The Tea Party Isn’t Libertarian

But what about the tea party? One might think there’s cause for hope there because, even though most tea partiers might not be pure libertarians, they seem to be talking about some of the right things, and they sometimes seem to have a healthy us-versus-them attitude toward Washington. In fact, some big names in the libertarian movement have seen the tea party movement gaining momentum and have tried to latch onto it and fund it, thinking that this might finally be a chance to get smaller government.

Without question, there are some true libertarians in the tea party movement, and I’m sure that some of them are able to use the tea party to introduce others to libertarian ideas. I started out as a conservative who liked Reagan’s limited-government rhetoric, and if I could come around, I’m sure some of the younger, more open-minded people in the tea party can come around.

But if you look at the tea party by the numbers, you realize that if liberty’s going to be achieved in the United States, it’s not going to be brought about by these people.

Consider some figures from an April 2010 CBS/New York Times poll of tea party supporters. It asked tea partiers to identify the political figures they admire most. Who was number one? If you guessed Ron Paul, I appreciate your optimism, but you’re way off. It’s Newt Gingrich – who’s known for, among many other things, advocating the death penalty for drug dealers, pushing for war with Iran, and praising the New Deal.

Number two? Sarah Palin. Make of this what you will. Number three is a tie between Mitt Romney – the progenitor of ObamaCare – and that noted enthusiast for smaller government and a "humble foreign policy," George W. Bush. Then at number four we have another tie, this one between George H.W. Bush (who gave us the mandatory low-flush toilets we enjoy today), Mike Huckabee (who, as far as I’ve noticed, doesn’t even pretend to favor liberty), John McCain, and, finally, yes, Ron Paul.

So add up all those people who admire ("Admire"! Think of it! George Bush? Sarah Palin?) someone other than Ron Paul, then compare that to the number of people who admire Ron Paul – which was 3 percent of all tea-party supporters – and you have a pretty clear idea of how likely the tea party is to advance liberty.

Those figures I just gave are a little old; they were from a year ago. You might be tempted to think that the tea party has become more radical since then. After all, government’s only gotten bigger – more spending, more war – so maybe they’re more radically opposed to the government now?

I’m afraid not.

Back in September, a Pew poll found that 47 percent of tea partiers said they were angry with the federal government. That seems kind of low, considering that the media is constantly telling us how angry tea partiers are, and if you’re really antigovernment, you do have a lot to be angry about.

But if they weren’t that angry before, maybe they’re really angry now. After all, they put in all that work to elect a new Congress, and that Congress hasn’t done anything at all to reduce government – and almost all of the tea-party Republican freshmen in Congress voted to renew the PATRIOT Act without any changes and with almost no debate. They must be really mad about that – being betrayed by the people they elected!

But no – in fact, the opposite is true. The Pew poll found that now only 28 percent of tea partiers say they’re angry with the federal government. And that’s after a couple months of a Republican-dominated House of Representatives. Imagine how not-angry they would be if the Republicans captured the Senate and the White House, too. If that happens, these people – led by the same talk radio hosts who led many of them to the tea party – will be right back where they were during the Bush years.

And all of this is to say nothing of the troubling anti-immigrant, virulently anti-Islam, and pro-war views that many tea partiers have been espousing right alongside their "limited government" talk.

Incidentally, here are the top three 2012 presidential picks of tea partiers from a Pew poll taken in March: #1, Mitt Romney; #2, Mike Huckabee, #3, Newt Gingrich. In fairness, however, that was back in March. Now, the results might be different. Now, they might replace one of these names with Donald Trump.

So I don’t think it’s an especially encouraging sign that the tea party came along and adopted some of the rhetoric and strategies of the Ron Paul movement. And I think the people who are trying to fund that movement and its candidates are wasting their money – if their goal is to advance liberty.

History Isn’t Encouraging

There are still more reasons to think Americans aren’t about to embrace liberty and put libertarians into office. Think about the infringements on liberty that Americans tolerated and enthusiastically supported over the course of the 20th century – especially the early 20th century. During World War I, Americans supported entering a pointless war, tolerated conscription of their sons to fight in that war, and tolerated many other infringements on their liberties, especially their right to free speech. Then they tolerated prohibition of alcohol – alcohol, which had played a vital, central role in Western civilization! – for years. Then they tolerated and repeatedly voted for the New Deal. Then during World War II, they tolerated the government rounding up Japanese-American citizens and putting them in concentration camps and all kind of wartime economic controls.

Now think about how much closer the country was back then to whatever libertarian roots it had. Those people went along with all of that tyranny – even though, unlike today’s Americans, they didn’t grow up going to federally controlled government schools. Those people in the early 20th century were much more loyal to institutions other than the state – their churches, their fraternal organizations, and other institutions of civil society. If those Americans back then could be so easily manipulated into embracing unprecedented fascist schemes, do you really think that Americans today are going to vote for less government?

Consider, too, that over the decades ahead, more and more people will be receiving checks from the government through social security and federal-government jobs. Are those people going to suddenly stop liking the federal government? Are they going to be receptive to calls to roll it back? Of course not.

I don’t say all of this to be negative or to depress you. The point simply is that trying to win elections isn’t going to work now or anytime soon because most people aren’t libertarians and aren’t about to be. As Ayn Rand said, "It’s earlier than you think."

The Courts Won’t Save Us

Some people argue that since libertarianism can’t win through the electoral process, we should go to the federal courts and use them to pursue liberty. After all, that’s what the leftists do when voters won’t go for what they want. With these libertarians, the idea is that we need to get courts to start reading the government’s powers in the Constitution more narrowly and to start reading its protections for liberty more broadly.

This camp has had big wins recently, particularly in the District of Columbia v. Heller and MacDonald v. Chicago gun rights cases, where the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms and that this right applies against state governments via the Fourteenth Amendment. And these legal activists think with some justification that this demonstrates that their strategy is a good one.

Of course, it is a great and heroic thing that they did this and that they won. There can’t be any doubt that many people – in DC, in Chicago, and in other cities with stringent gun-control laws – can now enjoy a right they couldn’t before.

But their big victory for liberty is likely to be not-so-big in the long run. The Supreme Court said in those decisions that while an absolute ban on guns is unacceptable, reasonable restrictions would be okay. And when the court someday tells us what it meant by "reasonable restrictions," we’ll almost certainly find that the right they’re willing to recognize is actually very narrow.

Winning court battles on issues like this helps people in the short term, and that’s great. It’s heroic – it’s saving people from being harmed by their criminal government. But this does nothing to address the underlying problem of a federal government that’s taking more and more power for itself.

The federal courts will not help us win that battle. The federal judges who sit on those courts are chosen by the President and confirmed by the Senate, and we all know that the President and the Senate will never choose or select anyone who won’t say that the federal government can do whatever it wants.

A strategy that relies on the courts relies on the assumption that the rulers Washington chooses for us might someday just decide to be benevolent and give us liberty. That idea should just seem patently absurd to any libertarian. That idea accepts the myth that judges are really just unbiased, neutral arbiters when of course they’re not; they’re political rulers who control us. Judges haven’t harmed liberty because lawyers haven’t made good enough constitutional arguments in support of liberty; they’ve harmed liberty because that’s what they were put on the bench to do.

So the courts won’t save us.

What Will Work

What will work?

People who want instant gratification will be disappointed, but my answer is the same answer that Albert Jay Nock gave in his classic essay "Isaiah’s Job" and the same answer that Leonard Read gave in his classic essay "How to Advance Liberty" (also a video lecture).

What we can do to advance liberty is to work first and foremost on the one unit of society we’re actually capable of improving: ourselves. Each of us can learn more about liberty, learn more about history, learn more about Austrian economics. We can learn to improve ourselves in every respect, especially in our speaking and writing skills so we can then pass the things that we learn on to others.

But our purpose shouldn’t be to go out and foist our ideas on others who haven’t asked for them. People don’t appreciate that; it will make them close their minds to you. Also, that kind of approach gets too close to the mentality that statists have, that they need to go out and reform other people to make them more like they want them to be. That’s not a healthy attitude.

Instead, because we’ll make ourselves the best we can be, other people will be drawn to us. Because of the character and intellect that we will cultivate, they’ll want to hear what we have to say. Other people, following our example, will then spread the ideas to others, and slowly we’ll see the ideas seep more and more into the culture. Eventually, we’ll see them pop up in unexpected places; we’ll hear them coming back to us out of the mouths of people from whom we wouldn’t have expected to hear them.

This isn’t far-fetched. We have a perfect example of this phenomenon in the real world today. In fact, this method I advocate explains in large part why libertarianism suddenly seems to be everywhere. Our perfect example is Ron Paul. Did Ron Paul ever really seek mass appeal? Did he attract his massive following through pandering to the masses? No. All he did was communicate his ideas clearly and consistently for decades, through whatever forums have been available to him, while maintaining an exceptionally high level of personal integrity.

Then – almost as if by magic – hundreds of thousands of people were drawn to him, wanting to hear his ideas, wanting to learn from him. And now, look at all the people who he’s inspired, who have gone out and begun to learn more and begun to spread the word themselves. Look at how we see the names of Mises and Hayek turning up in newspapers and magazines and on television, coming now from people who aren’t necessarily libertarians, but who are aware of these things because the ideas have gotten out there. This is how our ideas advance.

The Mises Institute also provides an example of this phenomenon. Did the Mises Institute attract its huge following through advertising in popular media? Did it have a plan – or ever try – to go out and convert the masses to liberty? Not that I know of. All the Mises Institute did was build a great institution and a great website and put the ideas out there, making them as freely available as possible to anyone who wanted to come find them. And then, because the Mises Institute is a light in the middle of a world of darkness, people were drawn to it.

Now some might say, "That’s great, but how do we actually get liberty?"

One way we can get liberty that’s perfectly consistent with the strategy I’ve just described is to create institutions that serve as alternatives to government institutions. People who homeschool their children are doing this – they’re freeing their children from the coercion and indoctrination of the government schools. And notice that this came about because a bunch of people just started doing it – they didn’t wait for liberty-friendly politicians to be elected, they didn’t wait for liberty-friendly judges to be on the courts, and they didn’t ask anybody’s permission.

But I know some people will still say, "Okay, that’s fine, but how do we get a libertarian society? How can we get rid of the state?"

The answer is that we have to keep doing our never-ending job of self-improvement, and we have to be patient.

Someday – we don’t know when – the existing Leviathan will collapse, just as the Soviet Union collapsed. Nothing lasts forever – especially not a socialist or fascist government. When that day comes, however it comes, if we’ve done well in spreading our ideas, there will be a natural aristocracy of libertarian leaders ready to help rebuild society on a better foundation.

This could be many years from now, and my guess is that it will be well after our lifetimes. Or it might not happen at all. That’s just reality.

And it’s nothing to be upset about. There are many good things that might happen in the future that we’re going to miss out on because we happen to have been born in this particular time period. Think of all the advances in technology that will probably happen someday that none of us will get to see: interplanetary travel, human lifespans extended to hundreds of years, the holodeck from Star Trek, and, of course, at long last, flying cars. Do you sit around all day being bummed out about that? No! You enjoy the stuff you do have, and you’re glad you don’t live in some previous century when you would have had it a lot worse.

It should be no different for liberty. There’s no reason why we should expect progress in this area to be faster or easier than progress in other areas. Getting a whole society to change its mind about some of its most fundamental beliefs is really difficult – especially when all the world’s governments, which have all the guns and all the money, are working hard against you.

There’s no quick fix. Libertarianism isn’t a political philosophy for people with high time preferences. It’s high time preference – the need to see results in Washington now – that leads libertarians astray. It’s what has made people latch on to politicians who don’t really share our values. It’s what has made people pursue political projects that would actually move us in the wrong direction, such as school vouchers and so-called social-security privatization. High time preference is what makes people think we should focus our efforts on the federal courts; just convince one judge and you get instant liberty – convince five Supreme Court justices and you get liberty for the whole country.

But it doesn’t work that way. It can’t work that way. Even if judges would do this, there would be no underlying foundation in society. People wouldn’t be ready for it, and there’s no reason to think it would last.

This isn’t to say we should never be involved with short-term practical political projects. If there’s a good chance of protecting someone’s liberty by going to court, do it. If there’s an antiwar movement that wants to stand in the way of a president’s evil deeds, join it.

But as we do these things, we must never forget the long term – and we must never compromise our principles, or everything we’ve built in this libertarian movement could be lost.

And, if you have an urgent personal need for more liberty in your life, there are lots of ways you can go out and get it. You can find ways to minimize your taxes. You can find ways to get around regulations (for example, you could be like Jeffrey Tucker and hack your shower). You can hold onto gold instead of Federal Reserve notes. You could also do what more and more people are doing and move to a part of the world that will give you more of the type of freedom matters most to you – if it’s that important to you. The Free State Project suggests the possibility of doing this within the United States. And, by the way, as more people vote with their feet like this, governments will have to compete for citizens – which is another way that liberty can increase without us having to dirty our hands in politics.

Regardless of what happens with the rest of society, we should all be glad that we’re living in a time and place that has allowed us to discover libertarianism and Austrian economics. This lets us see the world clearly in a way that few other people who have ever lived have been able to. Unlike most people, we can see the state for what it is. Unlike most people, we can understand what’s going on in the economy. Unlike most people, we have the truth, and in many important respects, the truth has already set us free.

So let’s keep learning, let’s keep improving ourselves, let’s keep communicating our ideas to others, let’s create more liberty for ourselves without the politicians’ help, and let’s take joy in all of that. And even if we don’t get as much liberty as we’d like in our lifetimes, we’ll have enjoyed ourselves along the way, and we’ll take satisfaction in knowing that we’ve given our time and energy to a worthy endeavor.

Reprinted from Mises.org.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

The Best of Jacob Huebert

This is a written version of a talk given on March 5, 2011, at the Nullify Now convention in Cincinnati.

How can you challenge a federal law that violates the Constitution and, more importantly, violates your liberty?

Suppose, for example, you wanted to get rid of the PATRIOT Act.

I suppose you could try to elect a president who says he opposes the PATRIOT Act and its violation of civil liberties. If a candidate said he's concerned about the government's abuses under the PATRIOT Act, and if a candidate said the PATRIOT Act is "shoddy and dangerous," and if a candidate said things like "There is no reason we cannot fight terrorism while maintaining our civil liberties" — maybe you'd vote for him and hope that things change.

Of course, in 2008, millions of Americans voted for a candidate who did say those things.

But when that candidate, Barack Obama, became president, did he make good on his promise to create more oversight over the use of National Security Letters and sneak-and-peek searches? Of course not. Instead, he did the opposite: He strengthened the government's power to spy on its people without a warrant or probable cause, and he took the exact same views on government power that the Bush Administration had taken.

You could also try to elect a new batch of Congressmen — people who say they'll respect the Constitution. Millions of Americans voted for Republican candidates who made that promise in 2010.

And then what happened when the PATRIOT Act came up for renewal a few months later? Of course all of these people who had been elected who claimed to love the Constitution — who insisted on reading the Constitution aloud (once, in part) at the beginning of Congress's term — voted to renew the PATRIOT Act. Ninety percent of the Republicans in the House of Representatives voted to renew the PATRIOT Act without so much as a committee hearing, with no markups, no Amendments, and just 40 total minutes of debate.

And of that handful of Republicans who voted against the PATRIOT Act, most weren't even tea party members. They were people who had been in Congress for years. Only eight freshman Republicans voted against the PATRIOT Act, and some of the biggest tea party figureheads who go on and on about the Constitution voted for it. No changes, no debate.

When House Democrats moved to add language to the PATRIOT Act that would have required that intelligence probes of U.S. citizens are conducted "in a manner that complies with the Constitution of the United States" only two Republicans voted for it: Walter Jones and Ron Paul.

Meanwhile, the other Republicans — such tea party icons as Michelle Bachmann, Allen West, Kristi Noem — showed just how much they really care about the Constitution, for all their talk. They couldn't even approve a sentence that said the law had to be applied constitutionally.

So electoral politics aren't getting us very far.

The Rigged Game of the Federal Courts

What about the federal courts? They're supposed to be the guardians of our constitutional rights, aren't they? Granted, they do protect some people's rights some of the time.

But if protecting your rights requires limiting federal power, don't expect the federal courts to help. At all.

After all, the courts give all federal legislation what they call a presumption of constitutionality. That means that they assume that the federal government can do anything it wants to you unless you can prove that they can't do a particular thing. And of course, no one can ever prove that because the courts read Congress's powers so broadly.

The presumption of constitutionality actually turns the Constitution upside down. If the Constitution really is intended to constrain government and protect our rights, as we're sometimes told, then all legislation should face a presumption of unconstitutionality unless the government can satisfy its burden to show that the law that it wants to enforce is specifically authorized in the very short list of powers given to Congress in the Constitution, to show that the law is necessary and proper for exercising that power, and to show that the law doesn't violate any provision of the Bill of Rights.

But unfortunately, the presumption of constitutionality that the federal courts apply isn't going to change. Ever. That's because federal judges, including Supreme Court justices, are chosen by the President and confirmed by the Senate. And any person who a President would choose and the Senate would confirm is going to be someone they know they can count on to let them do pretty much anything they want.

It's a rigged game.

And, by the way, if the federal courts can't get you one way, they'll get you another way.

When George W. Bush was president, he had the National Security Agency secretly spy on the phone calls and e-mails of American citizens with no warrant and no probable cause. A group of legal scholars tried to challenge this flagrant violation of constitutional rights, and in 2007 the case came before the U.S. Court of Appeals for the Sixth Circuit.

That Court said there was nothing that they could do about it. After all, no one could prove that they were a victim of the government's spying because the spying was secret — and the government couldn't say who it was spying on because it was supposedly a matter of national security. So no victim of this scheme — which everyone knew was going on and every reasonably intelligent person can see is unconstitutional — had any recourse at all in the federal courts.

Again, it's a rigged game — rigged against you and your liberties.

Rights or Temporary Limited Privileges?

And maybe you've noticed that even when the federal government does acknowledge your liberties to some extent, it does so only grudgingly, and makes as clear as it possibly can that, in the end, the government reserves the right to do whatever it wants to you.

For example, take the District of Columbia v. Heller gun decision from a couple years ago, where the Supreme Court finally — for the first time in more than 200 years — acknowledged that the Second Amendment protects an individual right to own a gun for self-defense. In some ways, it seems like a great decision; I certainly congratulate the people who fought and won that case for their heroic work.

But have you actually read the decision by the Republicans' hero, Justice Antonin Scalia? It says that even though the Second Amendment does protect an individual right, the right is "not unlimited" and subject to "reasonable" restrictions.

So what's a reasonable restriction? Who knows? It's whatever the Supreme Court says it is in the next gun case. If history is any guide, the right the Supreme Court ultimately recognizes will turn out to be very thin indeed.

When the lawyer arguing for Second Amendment freedom in that case argued before the Court, he had to recognize the government's power to infringe your rights to even get the justices to take him seriously. Even while arguing the pro-freedom side, he had to admit that the government could reasonably stop you from owning guns the government deems inappropriate for civilian use, that it could force you to keep your guns locked in a safe, and that it could force you to do and not do all manner of things related to owning guns.

I'm a lawyer myself, and I don't blame him one bit for that. When you're arguing in a court, your job is to say what's going to persuade the court, which won't always match your philosophical beliefs. I get that.

But that's the game you're playing in federal court at best — acknowledging that the government has the power to do whatever it wants and begging it to carve out just a little area where you can have some liberty.

The Nullification Alternative

The only real alternative to the rigged game is nullification, which allows the states to declare federal laws unconstitutional, refuse to enforce them, and protect their citizens from their enforcement.

Nullification isn't about groveling before politicians and judges to get a few scraps of liberty. Nullification is about the people standing up to the federal government and simply saying no: These are our rights, this is what the Constitution limits you to, and you may go no further.

Nullification is the only way that someone outside the federal government — which always wants as much power as it can get — can have a say as to what's constitutional and what isn't. It's the only way that the people, instead of their would-be masters in Washington, can have a say as to how much liberty they'll be able to enjoy.

Thanks to Tom Woods and his book on nullification, more and more people are waking up to the reality that presidents, Congressmen, and judges aren't going to fix things for us. And more and more people are looking to nullification as a potential solution for the government's ever-increasing intrusions on our lives.

Texans Against TSA Tyranny

For example, last month two bills were introduced in the Texas legislature to put an end to sexual assaults and porno-scanning by the Transportation Security Administration.

Will the federal government — the president, Janet Napolitano, the Congress, or the Courts – ever put a stop to the TSA? Of course not. The federal government never repeals anything, never strikes down anything. It only takes more and more over time.

So here's what they've introduced in Texas, in House Bill 1938. It says that an "airport operator may not allow body imaging scanning equipment" — meaning any device that uses backscatter x-rays or millimeterwaves, that creates a visual image of a person's unclothed body and is intended to detect concealed objects — "to be installed or operated in any airport in this state." It says that an airport operator who violates that provision shall be subject to a civil penalty of up to $1,000 for each day of the violation. And it authorizes the Texas attorney general to not only collect the penalty, but also to sue for injunctive relief — in other words, to get an order from a Texas court to stop the airports from using the scanners, to shut the TSA down.

And how about those TSA agents who take the opportunities they get to sexually assault whoever catches their eye?

There's a bill now in the Texas legislature to deal with those creeps, too, that would put a new provision in the state's sexual assault law. It says that if a person

As part of a search performed to grant access to a publicly accessible building or form of transportation, intentionally, knowingly, or recklessly:

(A) searches another person without probable cause to believe the person committed an offense; and

(B) touches the anus, sexual organ, or breasts of the other person, including touching through clothing, or touching the other person in a manner that would be offensive to a reasonable person,

then that person will be guilty of what Texas calls a "state jail felony," which means they will be put in prison for at least 180 days and up to two years.

Compare that to what the federal government does when its TSA workers when they sexually assault someone: Nothing!

There's similar legislation in the works in New Hampshire and New Jersey, too. If you want to learn more about these efforts and get some ideas about what you might do to advance similar legislation where you live, the Texas people have some helpful websites that you might want to check out:

• www.tsatyranny.com
• www.supportdignity.com
• www.stopaustinscanners.org

The "Experts" Must Be Ignored (Especially the Ones on the Supreme Court)

As this legislation moves forward in Texas, I'm sure that legal scholars will weigh in and claim that the states can't do it. They'll say it's unconstitutional for the states to do that — which is pretty funny, when you consider that many of these legal scholars are just fine with at least some amount of undeclared war, redistribution of wealth, restrictions on speech, pre-trial detention, the "presumption of constitutionality," and so on. To prove that it's unconstitutional, they'll point out that the constitution doesn't actually say anything about nullification, and they'll argue that the U.S. Supreme Court would never recognize nullification as legitimate.

But of course nullification is not unconstitutional. You can read the historical reasons why in Tom Woods's book.

You can also see why by just using your common sense. Supposedly, the Constitution is the highest law of the land. Some people think this means that the Supreme Court's interpretation of the Constitution is the highest law of the land, but of course that doesn't make sense, because the Supreme Court is just as capable of distorting or disregarding the Constitution's plain meaning as any other part of the federal government. So if people in the federal government violate the Constitution, it can't be unconstitutional to hold them accountable under the law. They're criminals violating the so-called highest law of the land, so it's appropriate to treat them as criminals.

The whole point of nullification is that the federal government must not be allowed to determine the extent of its own powers because, when it does, as we can see, it will decide that there are no limits.

Other Ways to Nullify

Of course, arresting federal agents isn't the only way to effectively nullify a tyrannical federal law. One thing states can do is simply refuse to aid the federal government in doing unconstitutional things; some state and local governments have done just that with respect to the PATRIOT Act. As Tom Woods mentions in his book, others have refused to implement the government's REAL ID Act.

And state and local governments and ordinary people can do things to simply make it more difficult for the feds to do their evil deeds. For example, I like what many librarians did when the feds started trying to get library patrons' records to see what books they had read. They simply deleted or shredded the data in advance so no one could ever get to it. There are many ways to peacefully resist the federal government and effectively nullify its unjust laws.

The Most Important Thing You Can Do

I strongly support nullification, but not because I'm a big fan of the Constitution. I've never been a big fan of the Constitution. We've had it for more than 200 years, and look where it's gotten us. It's given us the biggest, most powerful government in world history — a government that kills hundreds of thousands of innocent people around the world through war and many thousands more at home in less obvious ways.

You can say the Constitution been distorted or partially ignored, but if it can be distorted or ignored so easily, what good is it, really?

Apparently it's not much good, unless a significant portion of the population cares about liberty and is vigilant about defending its liberties. If people become conditioned to the idea that their liberties come from government — and exist only to the extent that the U.S. Supreme Court decides to recognize them — the Constitution is useless. And that's exactly what's happened in America.

On the other hand, if people do decide to care about liberties and are willing to fight for them, they are likely to demand and receive them regardless of what the Constitution says. It's the people's consent or lack of consent to being ruled that really makes the difference, not a piece of paper.

And that's why I like nullification.

Nullification is really about withdrawing our consent. It's about declaring that we should be allowed to rule ourselves and not be ruled by masters in Washington. It's about rejecting the received opinion of our elites that things must be the way they have always been and that we should simply shut up and listen to our betters. It's about declaring that what comes first are our liberties — not whatever's convenient for politicians and the powerful interests that finance their campaigns.

More and more people are coming around to the ideas of libertarianism: the idea that peaceful people should be left alone, the idea that government doesn't know what's best for everyone, the idea that stealing and killing don't become okay when the government does them.

Nullification provides a vehicle for advancing these ideas that has a solid foundation in our history. And even if these particular campaigns to nullify this law or that law don't work out, they will introduce more people to this concept.

This will help de-legitimize the federal government and its claims to absolute power. It will nullify the myths about our government that exist in people's minds, that we're taught from a very young age in our government schools.

Nullifying the government's legitimacy in people's minds in the most important thing we can do. It's what leads to the withdrawal of consent from tyrannical rulers of the sort we've seen recently in Tunisia and Egypt. And it's what will allow us to win in the end.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

The Best of Jacob Huebert

Narcotics and Cocaine

An obvious factor leading to drug prohibition was the temperance movement. It succeeded in getting alcohol banned in numerous states and, of course, ultimately banned nationwide from 1919 until 1933. If temperance activists could succeed in banning wine, which had played an important role in the history of civilization itself, it is not too surprising that they would have some success in prohibiting other substances that were less well understood or accepted. But temperance activists focused first and foremost on alcohol, and likely would not have achieved federal drug prohibition without help from other powerful interests.

One early factor was U.S. foreign policy, driven by the interests of big business. The Chinese had long sold tea and silk to the British East India Company in exchange for opium. As a result, opium use became widespread in China, which troubled its rulers. The Theodore Roosevelt Administration decided to take advantage of this by expressing concern over the opium problem and pressing for an international ban on the opium trade. This would curry favor with the Chinese and encourage them to open their markets to the United States. (We should note here that libertarians do favor open markets, but do not approve of governments using citizens' rights as a bargaining chip in this way.) To have credibility in pressing for international agreements restraining the opium trade, the United States took quick action to ban imports of smoking (as opposed to medicinal) opium.

Bigotry and xenophobia were another major factor leading to drug prohibition. Chinese immigrants were partly responsible for spreading opium use in America, so prohibitionists found a receptive audience among whites who feared the prospect of their daughters being lured into the Chinaman's opium den. Early anti-opium laws in western states explicitly discriminated against Chinese immigrants.

Absurd fears about cocaine-crazed blacks fueled support for cocaine prohibition. Dr. Hamilton Wright, the leading anti-drug crusader during the Theodore Roosevelt Administration, told Congress that cocaine "is often the direct incentive to the crime of rape by the Negroes," despite a lack of evidence for this or even for the proposition that blacks used cocaine more than whites. Still, Southern Senators especially bought into the widespread myth that black men on cocaine essentially became crazed zombies who were — yes, some people believed this — invulnerable to .32 caliber bullets.

Professional and industry groups, most notably the American Pharmacological Association, also helped enact drug prohibition. Big pharmaceutical companies did not like competition from patent medications, and pharmacists did not like it that people other than themselves could sell drugs. Regulation of drug distribution, even if it imposed costs on pharmaceutical companies and pharmacists to some extent, could be worthwhile to them if they could bear the costs while their smaller, less diversified competitors could not.

The first major federal action was the Pure Food and Drug Act of 1906, which required patent-medicine producers to list their products' ingredients on their labels. Although this may seem relatively inoffensive from a libertarian perspective — after all, libertarians oppose fraud — this gave professional and industry groups such as the American Medical Association and American Pharmacological Association some protection from competition, and it encouraged them to take further political action.

Congress passed further-reaching legislation in 1914 with the Harrison Narcotics Tax Act. The Harrison Act did not prohibit any drugs outright, in part because Congress was not certain that it had the authority to do so under the Commerce Clause. (Today's Congressmen would no doubt find this uncertainty quaint.) Instead, the Act banned distribution of narcotics and cocaine for non-medicinal purposes and limited who could sell the drugs for medicinal purposes. It required all involved in the distribution of narcotics to register with the federal government and to pay a tax of one dollar per year, and it required distributors to keep records. The Act also exempted sellers of certain medicines that contained the drugs in very small amounts.

Pharmacists and pharmaceutical companies accepted the Harrison Act because they could better afford its recordkeeping costs than their competitors. The next step came when Congress amended the Act in 1919 to allow the Bureau of Internal Revenue to prohibit "addict maintenance" (that is, giving drugs in regulated doses to addicts) by physicians. The result was that thousands of physicians were imprisoned for prescribing narcotics that had always been legal. By this time, the American public was even more receptive to prohibitionist efforts. World War I propaganda led people to view sobriety as a patriotic duty and drugs as a plot by the Germans. A not-so-sober 1918 New York Times editorial claimed that the Germans were deliberately addicting the rest of the world to drugs and alcohol to create a "world of u2018cokeys' and u2018hop fiends,' which would have been absolutely helpless when a German embargo shut off the supply of its pet poison."

Marijuana, the Killer Weed

Cocaine and narcotics prohibition came about for dubious reasons — pleasing China, the pharmaceutical industry's desire to eliminate competition, bigotry, World War I, and fanatical temperance activists — but the decision to prohibit marijuana was even less justifiable.

In 1930, the government established the Federal Bureau of Narcotics, led by Commissioner Harry Anslinger. In his position, Anslinger essentially decided who could legally manufacture narcotics for medical purposes in the United States, and he granted that privilege to just a handful of companies. In exchange for favorable treatment, these companies would otherwise do Anslinger's bidding; specifically, they would provide Congressional testimony as needed, including, when Anslinger wanted it, testimony as to the great potential harm of marijuana.

It is odd that anyone would have pursued marijuana prohibition in the 1930s, if only because so few people used it, but Anslinger targeted it anyway. No one is sure why, but one suggested reason is because, like any bureaucracy, the Federal Bureau of Narcotics had to justify its budget, particularly during the Great Depression. Plus, some suggest, Anslinger and the bureau wanted publicity.

During the 1930s, Anslinger and the Federal Bureau of Narcotics launched a propaganda campaign against pot. In speeches, Anslinger declared: "Take all the good in Dr. Jekyll and the worst in Mr. Hyde — the result is opium. Marihuana may be considered more harmful. . . . It is Mr. Hyde alone." The bureau was eager to provide "information" on the putative dangers of marijuana to journalists; marijuana horror stories began to appear in newspapers and periodicals, virtually all of them acknowledging Anslinger's bureau or its publications for their "facts." A 1934 St. Louis Post-Dispatch article described the effects of marijuana:

[T]he physical attack of marijuana upon the body is rapid and devastating. In the initial stages, the skin turns a peculiar yellow color, the lips become discolored, dried and cracked. Soon the mouth is affected, the gums are inflamed and softened. Then the teeth are loosened and eventually, if the habit is persisted in, they fall out. . . . [People in traveling jazz bands] take a few puffs off a marijuana cigarette if they are tired. . . . It gives them a lift and they can go on playing even though they may be virtually paralyzed from the waist down, which is one of the effects marijuana can have.

Anslinger himself published an article in American Magazine called "Marijuana: Assassin of Youth," in which he told of a young "marijuana addict" who, while "pitifully crazed," slaughtered his family of five with an ax.

Another likely factor leading to prohibition was, once again, bigotry, this time mostly against Mexicans. Mexicans brought marijuana smoking to the United States when about one million of them migrated here after their country's 1910 revolution. Some people resented Mexicans anyway, in part for their willingness to work for low wages during the Depression, and marijuana provided another excuse to attack them. Anslinger also testified before Congress that marijuana "causes white women to seek sexual relations with Negroes."

Powerful interests lined up in support of marijuana prohibition. Big pharmaceutical companies did so because they were beholden to Anslinger and because they did not want competition from marijuana, which they could not profit from themselves because it was a common plant. Chemical company DuPont supported the legislation because it would treat hemp (a form of cannabis that cannot be used to get high, but which serves numerous industrial purposes very well) just like other marijuana, which would eliminate competition for DuPont's synthetic products.

Still, despite the propaganda and prejudice, there was not much public demand for marijuana prohibition when Congress nonetheless passed the Marihuana Tax Act of 1937. There was not much evidence or debate, either. As legal scholars Charles H. Whitebread II and Richard J. Bonnie put it, the hearings "are near comic examples of dereliction of legislative responsibility."

Anslinger was the primary witness at the Congressional hearings, and he presented stories of the boy with the ax, another man who decapitated his best friend while under the influence, a 15-year-old who "went insane," and other anecdotes derived from newspaper clippings.

The American Medical Association provided a witness, a Dr. William C. Woodward, who pointed out that Anslinger had little more than hearsay evidence from newspapers to back up his claims. Although marijuana use in prisons and by children were supposed justifications for the law, Woodward pointed out that there was no evidence as to how many prisoners actually used marijuana, or how many children used it. For refusing to endorse the legislation, Congressmen accused Woodward of "obstruction."

When the bill made it to the House floor, it received less than two minutes of debate. A Republican Congressman asked whether the American Medical Association supported the bill, and a committee member, Fred M. Vinson — who had been present and asked questions at length during the committee hearings, and who would later become Chief Justice of the U.S. Supreme Court — responded with a bald-faced lie: "Their Doctor Wentworth (sic) came down here. They support this bill 100 percent." It was late at night, so they passed the bill without further substantive discussion, and soon the president signed it.

This is an excerpt from my book, Libertarianism Today.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

The Best of Jacob Huebert

This article is excerpted from Libertarianism Today, by Jacob H. Huebert.

Libertarians propose an immediate end to the drug war. This would be a dramatic course change for the United States but, as we'll see, it's really not so radical — it would just return us to the successful libertarian drug policy America had for most of its history.

For most of U.S. history, all drugs were legal. How legal? As libertarian writer Harry Browne put it, "Few people are aware that before World War I, a 9-year-old girl could walk into a drug store and buy heroin." In fact, before Bayer sold aspirin, it sold Heroin™ as a "sedative for coughs." (As a German company, Bayer was forced to give up the trademark after World War I under the Treaty of Versailles.) One heroin-laced cough syrup promised in its mail-order catalog: "It will suit the palate of the most exacting adult or the most capricious child." Cocaine, first manufactured by Merck, was popular, too. Parke-Davis (which is now a subsidiary of Pfizer) advertised a "cocaine kit" that it promised could "supply the place of food, make the coward brave, the silent eloquent and . . . render the sufferer insensitive to pain." Late-nineteenth century advertisements for "Cocaine Toothache Drops" promised users (including children such as those depicted in the ads) an "instantaneous cure." Another popular product, "Mrs. Winslow's Soothing Syrup," contained one grain (65 mg) of morphine per ounce, and was marketed to mothers to quiet restless infants and children. McCormick (the spice company) and others sold "paregoric," a mixture of highly concentrated alcohol with opium, as a treatment for diarrhea, coughs, and pain, with instructions on the bottle for infants, children, and adults. Another medication called laudanum was similar, but with 25 times the opium.  Heroin and opium were both marketed as asthma treatments, too. And, of course, cocaine was an ingredient in Coca-Cola from 1886 until 1900.

All these products were available "over the counter." A doctor, pharmacist, or anyone else could advertise them and sell them with no prescription or other special permission. Drugs were like any other good on the market.

Marketing heroin to children? Putting coke in Coke? Many people would take all this as evidence that of course the government needed to step in and do something. But the widespread availability of these products did not cause the disaster one might expect. In hindsight, it may not seem right that people casually took narcotics or routinely gave them to their children. On the other hand, in the years before acetaminophen, ibuprofen, or even aspirin (which was not introduced until 1898), people had few alternatives to treat pain. So as easy as it might be for us to criticize nineteenth-century Americans for using them, these drugs often really did help people and may have been their best alternative. And they were not just used by ignorant people taken in by snake-oil salesman; for example, Benjamin Franklin took laudanum to control pain from kidney stones late in his life.

Life under legalization wasn't perfect, of course. There were addicts. But most opium addicts became addicted because someone in the medical profession got them started on it, just as doctors today inadvertently hook people on legal drugs. Some people became addicted through patent medicines they took on their own — but addicts were just a small portion of the market for these products. Many people became opium addicts essentially because of government. During the Civil War, the United States fed opium addiction as it issued some 10,000,000 opium pills and 2,841,000 ounces of opium powder to the army. As a result, drug addiction became known as the "soldier's disease." Other factors that drove people to addiction were state and local alcohol prohibition and increasing social disapproval of alcohol, which prompted people to substitute opium for liquor. In states where alcohol was prohibited, opiate use rose by 150 percent. An 1872 study by the Massachusetts State Board of Health found that the temperance movement had caused an upswing in opiate use and noted that opium could be "procured and taken without endangering the reputation for sobriety," and was seen as "more genteel" than alcohol.

Opium addiction rose in the decades after the Civil War, but soon so did education and understanding about drugs and their addictive, dangerous nature among both physicians and the public. The rise of mass media helped; for example, the Ladies' Home Journal published numerous exposes on narcotic-laced patent medications. Meanwhile, the market produced safer medicines, such as aspirin. As a result of these factors, addiction peaked near the end of the nineteenth century and then began a long decline without any need for a government "war."

And although America did have addicts in the nineteenth century (perhaps as much as 0.5 percent of the population), there are some things it notably did not have. Most important, there was virtually none of the violence, death, and crime we associate with the present-day drug problem. Most drug users were not street criminals; instead, the typical addict was, as author Mike Gray put it, "a middle-aged southern white woman strung out on laudanum." Many or most opium addicts led more or less normal lives and managed to keep their addiction hidden.

Things were not perfect, as they never will or can be. But there was no real crisis when all drugs were legal.

Read the rest of this chapter in Libertarianism Today.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

The Best of Jacob Huebert

This article is excerpted from Libertarianism Today, by Jacob H. Huebert.

Libertarianism and war are not compatible. One reason why should be obvious: In war, governments commit legalized mass-murder. In modern warfare especially, war is not just waged among voluntary combatants, but kills, maims, and otherwise harms innocent people. Then, of course, wars must be funded through taxes, which are extracted from U.S. citizens by force — a form of legalized theft, as far as libertarians are concerned. And, historically, the U.S. has used conscription — legalized slavery — to force people to fight and die. In addition, an interventionist foreign policy makes civilians targets for retaliation, so governments indirectly cause more violence against their own people when they become involved in other countries’ affairs. Plus, war is always accompanied by many other new restrictions on liberty, many of which are sold as supposedly temporary wartime measures but then never go away.

War Involves Mass Murder

Today, people mostly accept that innocent civilians die in wars, and it doesn’t seem to bother them too much as long as it’s happening to other people on the other side of the world. The military calls this "collateral damage," and the American media mostly ignores it, but libertarians call attention to it and call it what it is: mass murder.

Historically, war didn’t necessarily involve killing innocents on a large scale. War was always terrible and undesirable, but by the eighteenth century, Europe had developed rules of "civilized warfare," and wars were generally fought only between armies, with civilians off-limits. From the libertarian perspective, this type of war is not so much of a problem; if people choose to engage in mortal combat with each other, that may be foolish, self-destructive, and even immoral, but it’s not aggression in the libertarian sense. (Of course, those wars still have objectionable ends — generally, the right to dominate a particular territory — but at least the means aren’t so offensive.)

Modern warfare is another story. Modern governments, including but not limited to democracies, claim to represent "the people," so modern wars are seen as being fought, not just between rulers, but between whole peoples. By this way of thinking, it’s not two governments fighting; it’s "all of us versus all of them." This is how politicians and some conservative pundits talk: either you are rooting "for America" or you "want America to lose" — they don’t distinguish between the country’s government and its citizens. If their view is correct — if governments really do represent the people — then it follows (more easily) that the people are fair game in war.

Of course, libertarians reject this view of government and democracy. Governments don’t actually represent their people — they prey upon their people. Many people in any given country, democratic or otherwise, don’t support all of their government’s policies, and don’t deserve to be punished, let alone killed, for what their government does. But many are unwillingly implicated in their government’s crimes through taxation, conscription, and other ways in which they’re forced to directly and indirectly support the war effort.

The United States led the way in destroying the historic prohibition on targeting civilians. In the Civil War, with Abraham Lincoln’s approval, General William Tecumseh Sherman unleashed "total war" in the South, burning cities and towns to the ground and destroying huge amounts of civilian property — food, housing, tools — mostly for no reason except to terrorize the "enemy" population.

Britain also played its part, thanks to Winston Churchill. In World War I, as First Lord of the Admiralty, Churchill implemented a blockade that caused about 750,000 German civilians to die of hunger or malnutrition. In World War II, Churchill urged the deliberate bombing of civilians in German cities, which killed 600,000 people and severely injured some 800,000 more.

President Harry S. Truman contributed as well, killing more than 200,000 people with the atomic bombs dropped on Hiroshima and Nagasaki — the first and so far only nuclear attacks by any country. The U.S. also killed over 100,000 more civilians in raids on Tokyo, including one major raid that took place after the atomic bombs had been dropped and Japan had indicated its willingness to surrender. Libertarians would consider the killing of all those civilians to be an unjustifiable war crime in any event, but libertarian historian Ralph Raico has argued that, contrary to popular belief, the atomic bombs weren’t even necessary to save American soldiers’ lives or win the war.

In the Cold War, the U.S. (and the Soviets) continued to produce and accumulate nuclear weapons, which, if used, would destroy enormous civilian populations. Even now, as it condemns other countries for wanting even one nuclear weapon, the U.S. maintains a huge nuclear arsenal, with nearly 4,000 nuclear missiles ready to use. Unlike guns and other traditional weapons, nuclear weapons have no legitimate defensive purpose; they can’t even theoretically be limited to target only enemy combatants. True, they serve as a "deterrent" without being detonated, but this provides little comfort, since it assumes that the President of the United States is, in fact, ready, willing, and able to bring a nuclear holocaust upon millions of people if put to the test. For these reasons, libertarianism calls for immediate, total nuclear disarmament. Libertarians might also point out that the very existence of nuclear weapons provides a powerful argument against large governments. Without big government, there is no reason why these weapons, which have the potential to destroy the entire human race, would exist.

Sometimes the U.S. foreign policy kills people indirectly. For example, from 1990 through March 1998, sanctions against Iraq kept food and medicine out of that country and caused at least 350,000 excess deaths of Iraqi children under the age of five ("excess deaths" meaning deaths above the normal death rate). In 1996, when asked on 60 Minutes whether it was worth allowing hundreds of thousands of children to die to achieve U.S. foreign policy goals, Madeline Albright (the future Secretary of State, who was then U.S. Ambassador to the United Nations) infamously said, "We think the price is worth it."

The Iraq war itself has also killed many thousands of people, causing at least 90,000 documented Iraqi civilian deaths by October 2009. Other estimates put the figure much higher, such as an October 2006 study from the medical journal The Lancet, which estimated that the war had caused, directly and indirectly, more than 650,000 excess Iraqi deaths. For perspective, one might recall that the September 11 attacks that led — quite indirectly — to the Iraq war killed 2,976 Americans.

War Is Anti-Market

Many on the right see no contradiction between their (nominal) support for capitalism and their support for war. Many on the left believe capitalism and militarism go hand in hand. Libertarians say they’re both wrong because war interferes with the free market.

War and the Economy

War disrupts the market by directing society’s resources away from productive uses and toward destructive uses, or at least toward things that people didn’t voluntarily demand. Nonetheless, the myth persists that war is good for the economy. For example, many people still insist that World War II ended the Great Depression, but libertarians have pointed out why this is false.

The idea that war makes for prosperity is an instance of the "broken window fallacy" that the great libertarian economist Frdric Bastiat identified in the nineteenth century. We mentioned this concept briefly in chapter one: if a window breaks, this "creates jobs" for the people who make and install windows. But if the window hadn’t broken, the window’s owner could have spent his or her money on something else instead — and society would be wealthier because we would have not only the unbroken window, but also the additional goods and services produced.

War is nothing but "breaking windows" on a massive scale. It creates jobs for the people doing the breaking, and for the people who do the cleanup — but if there were no war jobs, those people would do something else that would be creative instead of destructive. Yes, unemployment plummeted during World War II, but ending unemployment is easy if you draft millions of people into the military. Slavery is indeed a "full employment" program, but not a very desirable one, especially when it can get you killed. And it’s difficult to see how American soldiers were economically better off for being sent into the line of fire, or how their families were made better off by having fathers and sons sent away, possibly never to return.

Merchants of Death

Wars are not good for the economy, but they are good for some businesses: those that produce military equipment and weaponry, such as Lockheed Martin, Raytheon, and Northrop Grumman; those that provide "infrastructure" in occupied territory, such as Halliburton and KBR; and those that provide "private" military services, such as Blackwater. These "merchants of death" are not "free-market" entities; without a government buying their goods and services to wage war, they would not exist as we know them. They are economic parasites, who take society’s resources but do not produce anything for civilian use in return. Libertarians have consistently echoed President Dwight D. Eisenhower’s warning about the dangers of the "military-industrial complex" — a warning that Republican and Democrat politicians have almost universally ignored as the war profiteers successfully lobby them year after year.

Read the rest of this chapter in Libertarianism Today.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

The Best of Jacob Huebert

This article is excerpted from Libertarianism Today, by Jacob H. Huebert.

Libertarians would of course like to liberate the millions of students who are forced to attend government schools.

To achieve this, Milton Friedman suggested government-funded vouchers, which would allow children to use government money to pay for private-school tuition. Then at least parents and students would be allowed to exercise some choice as to where they could attend and escape the worst schools, and, the argument goes, education would improve as schools, including government schools, would have to compete for students and their (government-provided) money.

Although many libertarians have endorsed the voucher idea, vouchers are not necessarily libertarian. They do not strike at the root of the problem with compulsory government schools: the compulsion. They still rely on tax dollars taken by force, still allow children to be forced to attend school, and possibly increase the amount of government compulsion with respect to school curricula by imposing new requirements on heretofore private schools.

But aren’t vouchers at least a step in the right direction? Some libertarians sincerely believe so. But others suggest, with good reason, that vouchers are a step in the wrong direction.

Vouchers as Welfare

One obvious problem with vouchers, in the libertarian view, is that they are a welfare program. That is, vouchers often transfer money from taxpayers to people who do not pay taxes because the programs are targeted toward people with low incomes. As Lew Rockwell has explained, "If the middle and upper-middle class want to send their children to private schools, they must shell out twice: once for public schools for everyone else and once again for the schools they actually use." The voucher recipients, however, just receive a handout. Libertarian voucher advocate Clint Bolick argues that vouchers simply "empower parents to spend their public education funds on public, private, or religious schools." But this is not so; vouchers in practice empower people to spend someone else’s "funds."

Libertarian voucher advocates may respond to this by arguing that vouchers do not necessarily require any increase in government spending; under some programs, public schools’ budgets are reduced for each student in the district that uses a voucher to go elsewhere. Vouchers may even reduce the amount of tax dollars spent on education overall if the vouchers are worth less than the amount the government spends per child at public schools. But this is not necessarily so, and voucher advocates tend to endorse vouchers even when they do not work this way.

For example, when Hurricane Katrina devastated New Orleans, Bolick called on Congress to allocate $2.8 billion for hurricane victims to attend private schools. After all, he argued, this was just a "tiny share of the $62 billion" that Congress had already appropriated for Katrina relief. This strays far from the traditional libertarian view. For decades, libertarians have celebrated the principled stands taken by Davy Crockett (as a Congressman) and President Grover Cleveland when they resisted appeals to support spending tax dollars on disaster relief — not because they didn’t want to help people, but because it was not their place to force anyone to pay for a matter ordinarily left to the private sector. Following Katrina, however, supposedly libertarian voucher advocates were doing the asking, and asking for far more than anyone ever sought from Crockett or Cleveland. Instead of opposing government spending, these libertarians were — like everyone else in Washington — asking that the government spend money on their pet project.

In calling for government spending, voucher advocates tend to sound more like modern-day liberals than like libertarians. Indeed, although the teachers’ unions ensure that the Democrats remain officially opposed to vouchers, voucher advocates have found allies on the left. The liberal Washington Post, for one, endorsed the District of Columbia’s voucher program and urged President Obama to support continued funding for it.

Vouchers Versus Independent Schools

Even if vouchers didn’t increase government spending, many libertarians would still oppose them because they threaten independent schools. Government money, after all, usually means government control — and in education, that could mean that private schools would end up looking a lot like government schools.

Current voucher programs have strings attached, just as libertarian voucher critics would predict. For example, Milwaukee’s voucher program requires, among other things, that schools allow students to opt out of religious teaching. There is one practical way to comply with such a rule: to relegate religion to a particular course and scrub all other classes of religious content. Under such a requirement, schools that once applied religious considerations to many different subjects will no longer do so. In this way, the vouchers will prompt schools to stray from their original missions and control what those schools teach.

Schools that accept vouchers must also accept restrictions on whom they may admit (or deny admission to) as a student. For example, under the Milwaukee program and most others, schools must accept any student who wants to pay with a voucher — they cannot discriminate in their admissions for any reason, even, for example, religion. The result of this will be a drop in the quality of private-school students. The most disruptive students at government schools will now be allowed to drag down the educational environment at private schools. As the late libertarian champion of educational freedom, Marshall Fritz, observed, today’s private schools tend to attract a higher quality of student because presumably the student’s parents value education and, in many cases, must sacrifice for the child to be there. The parents’ attitude is likely to be reflected, to some extent, by the child. On the other hand, students who receive something for nothing are unlikely to appreciate what they receive and may degrade the experience for everyone else, just as they do now in government schools. (The easier the vouchers are to receive and spend, the more likely this is to be so.)

Voucher advocates may argue that private schools can avoid any threat to their independence by refusing to accept vouchers. But vouchers would put such independent schools at a severe disadvantage in the market. The schools would have to compete against both regular "free" government schools and "free" private schools that accept vouchers. It is easy to imagine independent education mostly disappearing under these circumstances. As economist Gary North has argued, parents who want to educate their child in a truly independent school would have to

locate other parents equally committed religiously and ideologically to the principle of independent education, and also financially able to put their preference into action. How many concerned parents will do this? How many private school administrators will be able to operate a school while denying admittance to those who would pay with vouchers? How many of these schools with real commitment to private education will there be? I can tell you: very, very few.

The independent schools would not be killed off by genuine market competition; they would be killed off by government privileges extended to some schools — those willing to accept government control — and not others. A program that would do this cannot be called libertarian.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

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This article is excerpted from Libertarianism Today, by Jacob H. Huebert.

The popular perception is that Ronald Reagan ushered in a "revolution" in government — an essentially libertarian one, in which the federal government was no longer viewed as the solution to problems, but was viewed as itself a problem. This revolution was even seen as outlasting Reagan, reflected in Bill Clinton’s declaration that "the era of big government is over." Only with the election of Barack Obama, pundits opined, did Americans cast off the anti-government ideology that had held sway since Reagan took office.

This popular perception is wrong. Reagan was no libertarian and did nothing to bolster libertarianism. Instead, he grew government and, if anything, stifled the libertarian movement by bringing libertarians and small-government conservatives into his coalition, getting their votes but giving them practically nothing in return.

First, there are the obvious ways in which Reagan was not a libertarian. His religious-right supporters favored much anti-libertarian moral policing, and Reagan paid them back for their support. Reagan drastically escalated the war on drugs, as the percentage of inmates in federal prison for drug offenses increased from 25 percent to 44 percent during his two terms. And he pursued an interventionist foreign policy by, among other things, putting troops in Lebanon, supporting Saddam Hussein in Iraq, and meddling in Nicaragua in the Iran-Contra matter.

One area in which Reagan did claim to favor personal freedom while running for office was draft registration: he promised to end it on the grounds that it "destroys the very values that our society is committed to defending." By 1982, however, he officially reversed positions because, he said, "we live in a dangerous world." (Of course, it was a world made all the more dangerous by Reagan’s own nuclear escalation — another offense against libertarianism.)

Despite all that, Reagan at least favored relatively free-market policies, didn’t he? Not at all, if one looks at results instead of rhetoric. Although Reagan claimed at times to support free trade, the portion of imports facing restriction increased 100 percent over the course of his two terms. Reagan railed against government spending and deficits while running for office, but both became far worse under his watch. In 1980, the final year of Jimmy Carter’s term in office, government spent $591 billion and ran a $73.8 billion deficit. In 1988, the final Reagan year, government spent over $1 trillion, and ran a $155 billion deficit.

True, those figures aren’t adjusted for inflation — but the need to adjust only shows that Reagan failed to defeat inflation, too (even if, in fairness, Federal Reserve Chairman Paul Volcker did control it better than his 1970s predecessors). Reagan had promised to restore the gold standard, and on taking office he appointed a commission to study the issue. But that group consisted almost entirely of people who were already known to oppose the gold standard — so its anti-gold findings were a foregone conclusion, no change in monetary policy resulted, and the dollar continued to lose value. (Ron Paul and Lewis Lehrman were on the committee and published a minority report, The Case for Gold, which remains in print.) Former Federal Reserve Chairman Alan Greenspan — a leading culprit in the economic crisis that slammed the American economy about twenty years after Reagan left office — was first appointed by Reagan and is therefore another part of Reagan’s anti-libertarian legacy.

One might think that Reagan deserves at least a modicum of libertarian appreciation for being a tax cutter, but this is wrong on two grounds.

First, increasing spending while cutting taxes is not libertarian. If the government spends more than it takes in, it will have to print or borrow the money to make up the difference. If the government prints the money, then taxpayers suffer an "inflation tax" that may be even more destructive than an ordinary tax. If the government borrows the money, then future citizens will have to repay the loans through future taxes or inflation (unless the government repudiates the debt). And, of course, all government spending siphons resources from the private sector, which, in turn, results in fewer consumer goods produced, which makes society worse off.

Second, Reagan did not effectively cut taxes. Reagan did sign a tax cut in 1981, which went mostly to the wealthy minority, but this cut was immediately offset by an increase in Social Security taxes and by the effects of "bracket creep," as inflation pushed people into higher tax brackets. (Also, rather than take the libertarian step of eliminating mandatory social security, Reagan "saved" it by forcing working people to pay more.) After that, Reagan continued to effectively raise taxes by "closing loopholes" over the course of his presidency. No wonder, then, that government revenues increased from $517 billion in 1981 to $1.031 trillion in 1989 — not what one would expect under a libertarian regime committed to cutting government.

What about deregulation? The major deregulations for which Reagan is sometimes credited — oil and gas industry deregulation, airline deregulation, trucking deregulation — were in fact enacted under the Carter Administration, which was perhaps more libertarian than the Reagan Administration, if results count. Carter’s deregulation conveniently took effect just in time for Reagan to take credit. But as Murray Rothbard put it, "The Gipper deregulated nothing, abolished nothing. Instead of keeping his pledge to abolish the departments of Energy and Education, he strengthened them and even wound up his years in office adding a new Cabinet post, the Secretary of Veterans Affairs."

Reagan and the Libertarian Movement

So the Reagan years were bad for liberty — and they were also bad in many respects for the libertarian movement. Anti-government sentiment had grown during the 1970s as a result of various factors, including Vietnam, Watergate, and disastrous economic policies. Reagan tapped into this anti-government sentiment and then used his position not to advance liberty but to restore respect for government and prompt a resurgence of militarism and flag-waving nationalism — a conservative’s dream, perhaps, but an anti-state libertarian’s nightmare.

Worse, many libertarians were sucked into the administration’s orbit early, optimistic because of Reagan’s apparent sympathy for libertarian ideas. Some of these libertarians became disillusioned and left Washington, but others adjusted their priorities to fit in and became part of the Establishment. Surveying the damage after eight years, Rothbard charged that "intellectual corruption" among (former or quasi-) libertarians "spread rapidly, in proportion to the height and length of [their] jobs in the Reagan Administration. Lifelong opponents of budget deficits remarkably began to weave sophisticated and absurd apologias, now that the great Reagan was piling them up, claiming, very much like the hated left-wing Keynesians of yore, that u2018deficits don’t matter.’"

Some libertarians did not join the government, but moved closer to it in hopes of gaining influence. Most notably, the Cato Institute moved its headquarters from San Francisco to Washington, DC in 1981. The move did raise the profile of the organization and its people, but Rothbard and other libertarian critics outside Washington have charged that they watered down the message at times to maintain beltway respectability and to appease wealthy benefactors who seek influence, most notably their foremost patrons (to this day), oil billionaires Charles and David Koch. Most significantly, on its move to Washington, Cato promptly and deliberately moved away from the pure free-market economics of the Austrian School in favor of more mainstream approaches, and with this also curbed criticism of the Federal Reserve, which at least until recently was the ultimate taboo in Establishment circles. Criticism of aggressive Republican foreign policy became somewhat muted as well, if not so completely abandoned. And where earlier libertarians had sought radical goals, the new Beltway libertarians increasingly promoted "public policy" compromises such as school vouchers and so-called private social security accounts.

Three decades later, some libertarians’ decision to latch onto Reagan and enter the mainstream Washington "public policy" business do not seem to have borne much fruit. Liberty has not advanced as a result, and it is questionable whether its decline has even been slowed. The enormous growth of government under George W. Bush testifies to the failure of this strategy. Lamentably, even after all this, some libertarians who know better continue to invoke Reagan as if he set a good example.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

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~ Friedrich Nietzsche, Thus Spake Zarathustra

Judge Andrew Napolitano opens his new book, Lies the Government Told You, with that quote, and that’s the book’s theme: the State is our enemy because it constantly lies, steals, and kills.

Radical Libertarianism

That’s a pretty radical idea, so this is a radical book.

This is not a book about "public policy," about how we might limit the rate of government’s growth, or about how to "reform" this or that program. It’s not really even about "getting back to the Constitution."

Instead, this book is about exposing the criminal acts of our rulers in Washington, and about abolishing and repealing powers and programs wholesale.

How principled is Napolitano here?

Take eminent domain. Even some libertarians decry "eminent-domain abuse" and complain about government taking property for purposes that aren’t a "public use" as the Constitution supposedly requires — as though taking people’s property by force for some purposes might be okay.

Judge Napolitano will have none of that. He writes that the concept of private property inherently entails "the right to exclude [others] . . . even the right to exclude the government." So instead of wanting to curb the "abuses" or condoning eminent domain in some cases, Napolitano says abolish eminent domain.

Through such stances, Judge Napolitano, here as never before, shows himself to be solidly in the same uncompromising libertarian camp as his fellow LewRockwell.com columnists. Also, throughout the book, he cites names that will be familiar to LRC readers, such as Murray Rothbard, Lew Rockwell, Ron Paul (who wrote the foreword), Thomas DiLorenzo, and William Anderson. And the book takes the "libertarian populist" tone often found on LRC, including just the right balance of scholarly analysis, easy readability, and moral outrage. So if you like this website, you’ll almost certainly like this book.

It shows a lot of courage for Napolitano to take this approach, given that he works at Fox News Channel alongside some people who attack anyone who opposes the warfare and police state as not merely wrong but un-American and evil.

Big Lies

Each chapter in Judge Napolitano’s book attacks a different government lie. These are not the ordinary, petty lies the partisan hacks on cable news channels accuse politicians from the other party of telling. These are big, fundamental lies that underlie the State’s ostensible legitimacy, such as:

• "Congress Shall Make No Law . . . Abridging Freedom of Speech" (Lie #5)
• "The Constitution Applies in Good Times and In Bad Times," (Lie #13)
• "Everyone Is Innocent Until Proven Guilty" (Lie #12)

You’ll notice that these are guarantees supposedly provided by the Constitution. But as Napolitano shows, the Constitution has failed to stop government from violating our rights.

For example, the First Amendment didn’t stop the government from violating free-speech rights during World War I, didn’t stop the government from imposing a "Fairness Doctrine" limiting speech over the airwaves, and doesn’t stop the government from routinely suppressing "commercial speech."

The Constitution’s protections also conveniently disappear when the government considers an emergency important enough.

And the government will ignore the presumption of innocence if it wants to hold you without bail before a trial. It will even ignore evidence of your actual innocence if it has decided you should be executed, as Napolitano says "lawless, heartless future President" George W. Bush did when, as Texas governor, he insisted on executing Leones Torres Herrera despite another man’s confession to his alleged crime.

Other chapters show how various other government promises to respect rights (starting with the Declaration of Independence’s claim that "all men are created equal") are mere lip service. Others respectively attack the lies of activist judges, gun controllers, nanny statists, drug warriors, and others who think they should run our lives for our own good. Others show how presidents, Republican and Democrat alike, lie when they say they don’t want to go to war and when they offer "facts" in making the case for war.

The "Free-Market" Lie

One of the most important chapters addresses this government lie: "America has a free market." The State is inherently opposed to the market, of course, but U.S. politicians love to hail "free enterprise" and the "free market" for their own self-interested purposes. Doing so makes them sound decent and reasonable because even today many people have at least some vague sense that the market is the source of our prosperity. More importantly, politicians love to promote the idea that we have a free market because that means when things go wrong in the economy, they can blame the market, rather than accept blame themselves, and claim that they need more power to overcome the market’s alleged failures.

Napolitano refutes this lie by pointing out (citing George Reisman) that we have more than 73,000 pages of detailed economic regulations, which are hardly compatible with anything like a genuine free market. And he provides some reasons why government is the source of, not the solution to, our current economic problems. He devotes an additional chapter to attacking the dishonesty and destructiveness of the Federal Reserve and government-enabled fractional-reserve banking.

Something for Everyone

Lies the Government Told You is a great book to give to your friends who are sympathetic to some libertarian ideas — perhaps they are Tea Partiers, Glenn Beck listeners, or similar — but still have an excessive amount of faith (i.e., any faith) in the State and politicians to turn things around.

For that matter, it is also worth giving the book to your more sensible liberal friends who may still be under the delusion that the Obama Administration and other Democrats are somehow more honest and less bloodthirsty than their Republican counterparts.

And even if you’re already converted to Judge Napolitano’s libertarian view, the book still has much to offer because it’s loaded with interesting, useful information about both history and current events, at least some of which is sure to be new to you.

For example, he reveals ugly facts about the excessively revered Founding Fathers — like George Washington, who not only owned slaves, but also reportedly had their teeth pulled to make a set of dentures for himself. And he gives up-to-date details about how the government is using the Patriot Act and other totalitarian innovations to take away our privacy and freedom.

How to Fight Back?

The book’s conclusion (read it here) suggests three things that will be necessary to undo all the damage the government has done.

First, "we must acknowledge that through the actions of the government we have lost much of the freedom that we once thought was guaranteed by the Constitution, our laws, and our values." Second, he writes, we must recognize that we do not have a two-party system in this country; we have one party, the Big Government Party." Third, he suggests, the "millions of young people who reject both wretched visions of the Big Government Party . . . need either to form a Liberty Party or to build on the libertarian base of the Republican Party."

Judge Napolitano’s book will surely help many people take the first two steps. That last item is a taller order. There are more libertarians today than ever before, but we’re still a small minority. We’ll need to do a lot more educational work before we can have much political success.

Still, Ron Paul has shown that a presidential campaign can be a great educational tool and bring many more people into the libertarian movement — so political activity may be worthwhile for that limited purpose. But it’s worth it only if we have a candidate who understands the importance of educating for liberty, can convey ideas exceptionally well, and can refuse to waver on principle even when under fire from vicious, lying opponents. I hope Ron Paul will do all those things again in 2012, as he did so well in 2008. But if he doesn’t want to, Lies the Government Told You suggests that there is at least one other man in America who would be up to the task.

J. H. Huebert [send him mail] is the author of Libertarianism Today, available in July. He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

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Peaceful, neutral Switzerland? That’s right. What’s the crime? It’s not sponsoring terrorism or harboring weapons of mass destruction. No, in the eyes of the U.S. government, Switzerland has done far worse: it’s kept money out of the hands of the Internal Revenue Service, money to which the IRS may not even be entitled under any law anywhere.

The U.S. and Switzerland are headed for a diplomatic showdown as the IRS demands that Swiss bank UBS turn over the names of 52,000 U.S. clients in the mere hope of exposing them as tax evaders, prosecuting them and taking their cash.

The IRS has already succeeded in going after one prominent user of UBS’s services: Igor Olenicoff. The billionaire, who has a home in Laguna Beach’s Emerald Bay, pleaded guilty in December 2007 to filing a false tax return, then sued UBS, contending bank advisers’ advice landed him in trouble.

Now the IRS wants more: that list of names. But the Swiss government has so far stood its ground. It understandably doesn’t want to let the IRS do this because of Switzerland’s longstanding strict banking-secrecy laws, which provide criminal penalties for disclosing client information. Plus, the Swiss have this crazy notion that their own laws — not ours — should apply in their own country.

So now the IRS is bringing a bigger ax to the battle: Secretary of State Hillary Clinton. She was scheduled to meet Friday with Swiss Foreign Minister Micheline Calmy-Rey to discuss "current bilateral topics and international cooperation," as Calmy-Rey euphemistically puts it. But we know what will really be said, directly or indirectly. It will be the same thing the U.S. always tells the rest of the world: Do things our way, or else.

Of course, if little Switzerland stands its ground, the U.S. won’t actually send in troops or start bombing Zurich. But if it comes down to it, our government just might tell UBS that it can’t do business here anymore, even though the Swiss bank employs more people in the United States than in Switzerland. That could start a trade war, which would hurt Americans and Swiss alike, causing more collateral damage to the failing U.S. economy than a mere $20 billion in taxes could ever even begin to fix.

All this effort, and all this potential harm, for what? So the IRS can conduct a fishing expedition in the accounts of people it doesn’t even know for sure have broken the law. The government claims that UBS is holding $20 billion of Americans’ money. Even if we unrealistically assume — without proof — that all $20 billion is legally owed to the IRS, that still would be a drop in the bucket of the federal budget (proposed to be $3.6 trillion in fiscal year 2010), and minuscule even compared with the so-called stimulus plans Congress has passed in recent months.

Some might argue that it’s wrong to let people hide their money in foreign banks. But there are many valid reasons for doing so. Here’s a basic one: protecting money overseas is justified because the IRS is a thief, seeking to take money from people who have earned it and give it to people who have not, and to hide money from a thief is justified.

But maybe, like many people, you’re OK with taxation, so here’s another reason: because many U.S. banks haven’t been so secure these days, and the U.S. dollar’s future isn’t very bright, either. Swiss banks and Swiss francs, on the other hand, have a relatively good reputation.

In an editorial condemning tax evaders, SmartMoney editor-in-chief James B. Stewart admits that there are "certainly citizens of countries whose own banking systems are so precarious and the risks of persecution for any number of reasons so great, that a Swiss bank account must provide welcome security." What Stewart fails to recognize — despite the obvious evidence all around us — is that the U.S. has proved to be just such a country, with the Federal Reserve wrecking the financial system and the IRS persecuting people it believes haven’t forked over enough money.

In addition to those reasons, there is the simple right to privacy. The Fourth Amendment, after all, protects people from unreasonable searches and seizures — with the full knowledge that this will, in fact, allow some people to conceal illegal activity. But we accept that because in America, we theoretically value respecting privacy more than we value catching and punishing every single lawbreaker.

Unfortunately, it appears that the Swiss understand this better today than we do.

This article originally appeared in the Orange County Register.

J. H. Huebert [send him mail] is an award-winning attorney, a former clerk to a judge of the Sixth Circuit U.S. Court of Appeals, and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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How frustrating it must be to be Ron Paul.

The Texas congressman and Republican presidential candidate always said there was no justification for war with Iraq — no weapons of mass destruction, no threat to the United States — and his colleagues in Congress and most of the American people ignored him.

Ron Paul also saw that we were headed for a financial collapse and runaway inflation because of the Federal Reserve Bank — and his colleagues in Congress and almost all of the American people ignored him.

Now, Americans realize the war was wrong, and they want the troops to come home — but they still vote for candidates who won’t promise to bring the troops home and who are ready or even eager to commit troops elsewhere.

Now, Americans know the economy’s in a recession, if not a depression, and inflation worries loom — but still they vote for candidates who offer no serious monetary reform.

Apparently there is much educational work to be done — and now Ron Paul is taking up that challenge, too.

His new book, The Revolution: A Manifesto, presents his political philosophy and provides a blueprint for restoring a peaceful, prosperous American Republic.

Paul shows how Republican politicians pull the wool over conservatives’ eyes. While campaigning, they’ll pick on isolated instances of government waste and promise to abolish them, leading voters to believe they’re supporting the small-government candidate. But once in office, the politicians invariably support greatly increased spending in other areas. "And," Paul writes, "nothing changes."

Democrats fool their voters, too. They oppose Republicans’ wars, at least at election time, but they have a list of other wars they’d like to wage in different parts of the world. "And nothing changes."

Paul argues that voters need to reject the "false choice" between Republicans and Democrats. Whatever their superficial differences, both parties and their candidates will drive the country further down the path of ever-bigger government, empire and economic ruin.

If Americans want to get something different from what they’ve always gotten from Washington, they need to demand radical changes now. The book explains what those changes should be.

In foreign policy, Paul proposes bringing the troops home not only from Iraq, but also from all the places they’re stationed around the world. He shows how this was the policy of the founding fathers and explains why it would work today.

He documents well his claim that we face terrorist threats only because of our Middle East meddling. "When our government meddles around the world, it can stir up hornet’s nests and thereby jeopardize the safety of the American people," he writes.

Recognizing that isn’t a matter of siding with terrorists — it’s "just common sense."

The book’s penultimate chapter may be its most important, as it discusses what Paul calls the "forbidden issue in American politics": our monetary system.

People know we have a Federal Reserve and that it somehow affects our economy, but they know little about how it works. Paul clearly explains how the Fed’s printing more money makes everyone’s dollars worth less — and why higher prices then hurt workers long before their wages catch up. He also explains how the Federal Reserve’s inflationary policy creates economic booms and busts.

The solution? Stop printing more money and allow people to use money backed by gold and silver, as all our money was not so long ago.

Will enough people read and heed Ron Paul’s words to change our course? It’s hard to say.

One thing’s certain, though: If you always do what you’ve always done, you’ll always get what you’ve always gotten. The failure to grasp that simple fact is a strong indicator of insanity.

But for some time now, America has been an insane asylum, with the inmates running it.

Isn’t it about time for the American people to wake up and take the crazies out of office, and move them to a padded cell where they can’t hurt themselves or anyone else?

Ron Paul’s book can go a long way in helping to accomplish all that and more.

And that’s why the crazies have such great fear of Ron Paul and his revolution.

J. H. Huebert [send him mail] is an award-winning attorney, a former clerk to a judge of the Sixth Circuit U.S. Court of Appeals, and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Amtrak — America’s socialized passenger rail service — is ever-desperate for passengers to justify its existence. For its latest futile publicity stunt, it wants us all to celebrate “National Train Day” at train stations across America today.

At Union Station in Los Angeles, for example, you can enjoy such not-so-fun-sounding events as a free concert by Drake Bell, star of Superhero Movie; an appearance by “ARTE,” Amtrak’s “environmental mascot;” and a “Train Driving Simulator,” which one might imagine is somewhat like the actual car driving you will do on the way to the event, only with less steering and more cow-catching.

Amid the festivities, there’s one thing we can safely assume no one will be singing about: Amtrak’s draconian new security measures. These reflect a drastic change from Amtrak’s heretofore easygoing policies that allowed you to pretty much just show up and board — no searches, no wandings, no pat-downs. Whatever one might say about Amtrak otherwise, this was its great advantage over air travel in the months and years following September 11, 2001.

Now, though, Amtrak is sending police to perform random screenings of passengers’ carry-on bags. It’s also deploying bomb-sniffing dogs and police armed with automatic weapons to patrol trains and platforms.

If a passenger doesn’t want to have his bag searched, he’s free to decline, not board the train, and have his ticket price refunded.

How any of this will increase passenger safety remains a mystery.

Presumably anyone who wants to carry a bomb onto a train will exercise his option not to have his bag searched, not board the train, and — unless he is an exceptionally lazy terrorist — come back on a day when the screening team isn’t there.

But don’t consider that an argument for screening everyone all the time. After all, why would a terrorist targeting a train bother to board it at all? He can’t hijack it, because there’s no place to take it except where it was going anyway. Presumably it would make a lot more sense — and I don’t think I’m giving anyone any new ideas here — for him to attack the tracks, which Amtrak cannot possibly guard along their entire length.

So it’s difficult to see what benefits this program might bring. But what about the costs?

The first and most obvious cost is compromised liberty and privacy. People should be free to travel without having to show papers or prove they aren’t criminals — especially where, as here, Amtrak has not come forward with any compelling reasons why an exception should be made to this usual rule.

These police searches might conveniently turn up evidence of contraband other than terrorist weapons in passengers’ bags, and allow them to be arrested for that instead. Indeed, how long will it be before the bomb-sniffing dogs are supplemented by those of the dope-sniffing variety? You might argue that it’s just as well to catch people committing other crimes, even victimless ones like drug possession. But if that’s the main “benefit,” then Amtrak should say so and not use the pretense of protecting us from terrorism.

Another cost of Amtrak’s plans is that they may make Americans accustomed to hallmarks of a police state: random searches, and men in uniform with big guns. That may not matter much to the masses of sheep who often seem so willing to trade liberty for false security, but it still means a lot to many Americans, and meant a lot to our Founding Fathers as well.

Amtrak may also pay a monetary cost: the new measures not only will cost money to implement, but may also make rail travel even less popular than it already is. Even if we assume that most Americans don’t mind giving up some liberty, travelers don’t like to be slowed down. Sure, Amtrak claims that the screenings are “not expected” to cause delays, but such promises from an essentially governmental entity are hardly reassuring, especially in light of the Transportation Security Administration’s record.

One thing that is certainly “not expected” by anyone is a profit for Amtrak in 2008, or ever. Instead, Amtrak has to return to taxpayers with its hand out year after year, presently getting about $1 billion annually from the federal government and many millions more from state governments. A real business could not function in this way: it would close its unprofitable lines (in Amtrak’s case, almost all of them) or immediately find a way to make them profitable, or it would go out of business.

In any event, a private business would not waste money on pointless projects like Amtrak’s security scam — which confer no benefit to anyone but instead impose costs on both the business and its customer.

J. H. Huebert [send him mail] is an award-winning attorney, a former clerk to a judge of the Sixth Circuit U.S. Court of Appeals, and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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I confess: I was a coca leaf user.

That said, I should also note that I’ve never consumed any so-called recreational drugs, nor do I consume alcohol or tobacco.

But the coca leaf — well, that’s different.

Most Americans know coca as the plant from which cocaine is derived. And I — along with millions of others — know it as a great natural remedy, either chewed in leaf form or consumed as tea.

My experience with coca leaf occurred several years ago in Peru after I took the overnight bus from Arequipa to Puno, on Lake Titicaca, ascending over 5,000 feet in a few hours.

The bus ride itself was bad — they showed the "SNL"-spinoff movie "Superstar" with Spanish subtitles, which did little to make me proud of my national origin.

But what I felt when I arrived at my destination was even worse: a unique combination of malaise and nausea, accompanied by a complete lack of appetite.

I could not recall feeling so intensely awful in my life. Locals soon informed me that I had altitude sickness (warnings about which I had ignored) and urged me to drink coca-leaf tea. So I did.

The relief wasn’t instant, but within a matter of hours I felt fine, well enough to proceed to other Andean adventures, including a two-and-a-half day trek up into the thin air of Machu Picchu, the legendary lost city of the Inca.

During my high-altitude travels, the coca leaf was everywhere, in tea or being chewed.

Consumed in leaf form, coca has many beneficial effects: It not only relieves altitude sickness, it’s also good for general aches and pains and minor digestive disorders. Like green tea, its benefits seem endless, its drawbacks, none.

Or rather, the drawbacks would be none, except that cocaine, a small amount of which is contained in the leaf, is a drug upon which the U.S. and United Nations have declared war. That means an integral part of the lives of countless indigenous Andean people is under fire from fixated foreigners.

Most recently, the U.N. told South American governments that they should criminalize the traditional use of the coca leaf. Peru’s lawmakers, however, heroically rejected that demand, and dozens of legislators chewed coca leaves on the floor of the Peruvian Congress in protest.

Congresswoman Hilaria Supa told reporters, "The coca leaf has existed for thousands and thousands of years. It’s part of our agriculture, our food and our medicine. It’s sacred. The United Nations doesn’t know our culture. It doesn’t understand our values."

The U.N.’s outrageous demand is a relatively minor insult compared with our government’s aggressive anti-coca campaign over the past several decades directed against its own citizens.

Indeed, before Congress passed the Harrison Act in 1914, anyone in the United States was free to use pretty much any drug of their choice without a prescription, much the way it still is in Latin America today.

These are relatively peaceful days for the millions of native coca-leaf users in Peru, especially now that the worst days of guerrilla warfare hopefully are behind them. But they are peaceful days that the United States and U.N. seek to destroy, to the extent their drug war hasn’t already.

The days before the Harrison Act were peaceful in America, too, before government took control over everyone’s life, when you were mostly free to do anything you wanted to as long as you were peaceful.

Yet we in the U.S. now bear the brunt of it all, being forced to not only live in fear of the criminals on the street, but in fear of the criminals who operate our government.

Why would Americans want to force our own failed experiments in drug prohibition on other nations? Maybe it’s because many among us believe we’re better than "those people."

Or maybe it’s just the old story: Misery loves company.

J. H. Huebert [send him mail] is an award-winning attorney, a former clerk to a judge of the Sixth Circuit U.S. Court of Appeals, and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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“Straight or gay? U.S. court says Web site can’t ask.” That’s the headline Reuters put on its story about a decision just out of the Ninth Circuit U.S. Court of Appeals.

The article continued: “A roommate-finding site cannot require users to disclose their sexual orientation, a U.S. appeals court ruled on Thursday, in the latest skirmish over whether anti-discrimination rules apply to the Web.”

That’s an outrageous violation of freedom of speech and association.

Fortunately, however, the story is dead wrong. The Court did not hold that Roommates.com can’t have users fill out a form on which they indicate (among many other things) their sexual preference, or impose any restriction on Roommates.com or its users.

An Outrageous Lawsuit

Make no mistake: this lawsuit is outrageous.

In the suit, filed in a California federal court, the plaintiffs allege that Roommates.com violates the federal Fair Housing Act and a California anti-discrimination law. How does Roommates.com supposedly do this? By having users fill out a form on which they list information about themselves and the roommate they would like to have. And what is the supposedly improper, discriminatory information that the website seeks? The user’s sex, sexual orientation, and whether or not the roommate will bring children into the household.

The questions about sex and children allegedly violate federal law; the question about sexual orientation allegedly violates California law. (Federal law doesn’t prohibit housing discrimination based on sexual orientation.)

Of course, this lawsuit seeks an atrocious violation of freedom of speech and association. And if people looking for a roommate online can’t say whether or not they want to room with someone with children, then the internet may become useless as a tool for finding roommates.

In response to the lawsuit, Roommates.com raised the federal Communications Decency Act (“CDA”) as a defense. The CDA provides that if a website’s owner passively displays content created by its users, then the website owner can’t be held liable for that content. So Roommates.com argued that, sure, they provide the form, but it’s the user’s content, because the user fills out the form.

The trial court concluded that the CDA applied and dismissed the federal claims. Having dismissed the federal claims, it declined to exercise jurisdiction over the state claims.

The Appeal

On appeal, Judge Alex Kozinski, writing for the Ninth Circuit Court of Appeals, considered whether the trial court made the right decision about the CDA, and concluded the trial court got it wrong.

Although this is an outrageous lawsuit, the Ninth Circuit did not reach an outrageous conclusion.

It is entirely reasonable to conclude that Roommates.com is partly responsible for the discrimination that occurs on its website, because it provides forms with questions you have to answer about sex, sexual orientation, and children. Therefore — just applying simple logic, looking at the facts and the law — the CDA won’t suffice to get Roommates.com off the hook if Roommates.com violated the law.

The Court specifically declined to consider whether the discriminatory speech here is protected by the First Amendment — that’s up to the lower court to decide first, which it will now, because the case has been sent back there for further proceedings.

The Court also held that users’ comments about what they’re looking for — that is, the part they can write themselves that doesn’t involve checking a box on a form — are protected by the CDA. So you can still discriminate to your heart’s content there.

And that’s all there is to it. There was no holding prohibiting Roommates.com or its users from doing anything just yet — there was only a holding that the site can’t rely on the CDA as its defense. Instead, it can raise some other defense, like the First Amendment. I suspect that defense and any others Roommates.com raises will fail, but it hasn’t happened yet.

Judge Kozinski

Now all of that may be a relief. But Judge Kozinski is nonetheless due some harsh criticism.

His decision contains the following gratuitous statement in a footnote:

The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations…. [I]ts vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online business an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

Shouldn’t judges always be careful to prevent “overzealous enforcement of laws and regulations”? And who gave federal judges the power to determine when exactly the internet would be ready for “overzealous enforcement of laws and regulations”? Judge Kozinski had no need to say any of this, but his comment creates something other judges can now cite to support decreased protection for online liberty.

Judge Kozinski’s lack of concern for liberty should come as no surprise. The so-called libertarian judge showed a similar disregard for government abuses on the Cato Institute’s website, and suggested that anyone who thinks we need more liberty than the status quo should shut up and thank the government for the freedom it’s already so graciously granted us:

There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it — that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.

(Judge Kozinski also displayed a rather more benign sort of aggression in his appearance as a contestant on The Dating Game.)

Conclusion

In the worst-case scenario, the trial court (or the Ninth Circuit on another appeal) will decide the next time around that Roommates.com does violate the Fair Housing Act or California law, and that the First Amendment does not protect the website and its users’ speech. The part of that decision pertaining to sexual orientation would only apply to California, because such discrimination is only illegal under state law, not federal law. And the part of the decision pertaining to sex and children would apply only in the states included the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

That’s too bad for them, but it might be good news for the rest of us. The Ninth Circuit Court of Appeals has a terrible reputation — its decisions are overturned by the U.S. Supreme Court more than any other circuit’s, and other circuits around the country often do the opposite of whatever the Ninth Circuit does.

So in a sense, a bad Ninth Circuit decision on this issue could serve as sort of a national inoculation against the most outrageous offenses against everyone else’s freedom.

In the meantime, we should all remain wary of both government intrusion and sensationalist mainstream media misinformation.

J. H. Huebert [send him mail] an award-winning attorney, a former clerk to a judge of the Sixth Circuit U.S. Court of Appeals, and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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So Wal-Mart has capitulated to its critics — most prominently MSNBC’s Keith Olbermann — who slammed the company (persistently) for seeking subrogation from an injured employee.

Although I’m happy for the brain-damaged employee and her family, Wal-Mart made the wrong decision.

What Happened

To be sure, this controversy arises out of an extremely sad story. Debbie Shank was in a traffic accident in 2000, which left her severely brain damaged. This caused memory problems, such that she frequently forgets that her 18-year-old son, Jeremy, was killed in Iraq. Her heart breaks all over again every time she asks about him and is told he is dead.

Because she was a Wal-Mart employee at the time of the accident, and a member of Wal-Mart’s health plan, Wal-Mart covered Mrs. Shank’s medical expenses, which totaled $470,000.

Mrs. Shank also sued the trucking company that employed the driver who hit her, and settled the matter for a little under $1 million. After paying her legal fees and related expenses, she had $417,000 left in a trust account.

Then Wal-Mart sued Mrs. Shank to take that money from her — and Wal-Mart won, after the U.S. Supreme Court rejected Ms. Shank’s final appeal last month. Wal-Mart was entitled to the money because it had a right of subrogation — that is, it had the contractual right to take back the money it paid for her medical bills.

Subrogation and Wal-Mart’s Critics

Subrogation is a perfectly normal thing in the insurance world — as even your insurance agent can tell you — and it makes perfect sense.

Let’s say you’re the victim of an auto accident and you pay your medical bills out of your own pocket, then you sue and win an award or settlement. You then get to keep all the money you’ve won after you pay your legal expenses. Part of the award you receive may be reimbursement for the medical bills you had to pay. Part may be for your pain and suffering. And in some cases, part may be an award of punitive damages.

But what if you do have medical insurance? Then your insurance provider pays the medical bills. If you sue and win, why shouldn’t the part of your award that covers your medical expenses go to the party that actually paid the medical bills? Especially when you signed an insurance contract in which you promised exactly that?

Mrs. Shank’s husband, although disappointed, seems to understand all that, telling reporters that Wal-Mart is “quite within [its] rights” to seek the money. “But,” he adds, “I just wonder if they need it that bad.”

Some in the media were less understanding. Last week, Keith Olbermann gave Wal-Mart his “Worst Person in the World” award more than once for seeking the money from Ms. Shank. He expressed outrage that Wal-Mart would make $11 billion in profit for the year but still insist on having this woman’s settlement money, too.

What Olbermann and other critics failed to understand is that seeking subrogation from Ms. Shank has nothing at all to do with corporate greed.

Wal-Mart, which is self-insured, has a fiduciary duty — the highest possible duty under the law — to all of its health plan members to seek subrogation when it can, to keep all the plan members’ premiums as low as possible. If Wal-Mart doesn’t keep costs down like that, premiums will go up, and fewer Wal-Mart employees will be able to afford health care at all. (And then, one can imagine, the likes of Mr. Olbermann will criticize Wal-Mart for that.)

To be clear: the money Wal-Mart would have recouped from Mrs. Shank would not have enhanced Wal-Mart’s bottom line. Instead, that money would go to Wal-Mart’s health plan to pay for other people’s health care.

Wal-Mart Caves

Despite its fiduciary duty to its plan members, Wal-Mart caved to its critics this week and stopped seeking the money from Mrs. Shank.

Legally, I don’t know how Wal-Mart pulled this off. If they just stopped seeking subrogation, and did nothing else, Wal-Mart’s health plan members may be able to sue Wal-Mart for a breach of fiduciary duty. My guess is that Wal-Mart got around this problem by taking the money from some other fund at Wal-Mart (i.e., taking it away from the company’s bottom line) and putting it into the health plan to cover the loss.

That sounds charitable — but it was absolutely the wrong thing to do. By giving in, Wal-Mart has implied that its critics were right: until now, it was just being greedy when it wanted subrogation. But as we’ve seen, that’s simply not the case. And even if Wal-Mart didn’t have a fiduciary duty under the law, it is a business, not a charity, and is not obligated to give its money away.

What Wal-Mart has done is what Ayn Rand condemned so fiercely in her novel, Atlas Shrugged: it has given its sanction to those who wrongly claim it is evil for doing business.

With such an attitude, how long can Wal-Mart survive? How will Wal-Mart be able to defend itself the next time it needs to defend its rights, when it has already conceded the moral high ground to its enemies who don’t respect rights?

With such an attitude widespread — in a world where business courses teach would-be entrepreneurs that they must place “giving back” and apologizing for their success above all else — how long can our civilization survive?

Now Congress is considering legislation to limit or ban subrogation in cases like these. When even fewer people can afford health insurance as a result, what do you think our government’s next step will be?

With “journalists,” government, and cowardly businesses walking in lock-step, our reality grows ominously closer to the world of Atlas Shrugged each day.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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The gutter press is desperate to turn Heath Ledger’s death into a sex scandal rather than a mere sad accident.

Thus, the gossip writers remind us again and again that Diana Lee Wolozin — the masseuse who found Mr. Ledger’s body — used Ledger’s cell phone to call his friend Mary-Kate Olsen several times before she called 911.

The implication of this — the UK’s Telegraph tells us in so many words — is supposed to be that if only Ms. Wolozin had not “wasted time” calling the former infant star of Full House instead of 911, then Mr. Ledger might still be alive.

But even if she had dialed 911 first and paramedics had come immediately, that would be a dubious allegation. Mr. Ledger is estimated to have died some twenty minutes before his masseuse arrived — so the chances of him being revived were slim indeed.

In any event, Ms. Wolozin may have had sound reasons to call Ms. Olsen rather than 911, thanks to government policies that tend to discourage anyone from calling 911.

For one, there’s the fact that calling 911 doesn’t necessarily bring the fastest results — and doesn’t guarantee any results.

As Richard W. Stevens’s book Dial 911 and Die illustrates with example after example, countless people have been killed by violent criminals because they relied on 911 instead of taking matters into their own hands with a firearm.

When you dial 911, police and paramedics are free to ignore your pleas. If they dawdle or choose not to come at all, they won’t be held liable. California’s Supreme Court has said so in as many words, as have other courts. The U.S. Supreme Court has held that you have no individual right to police protection (let alone help from the paramedics) even though you pay taxes and even though protection of your life is the main theoretical justification for government’s existence.

When Ms. Olsen received the masseuse’s call, she immediately sent her own private security team to Ledger’s apartment. Press accounts leave the precise timeline murky, but there is no question that Ms. Olsen’s private team arrived on the scene at least as soon as, and maybe even before, the 911-dispatched team. Unfortunately, Mr. Ledger died anyway — but this still illustrates that the choice to call for private help first wasn’t unreasonable.

Another reason why Ms. Wolozin may have been reluctant to call 911 is because that would necessarily involve a surrender of her client’s privacy, an issue about which celebrities like Mr. Ledger are understandably highly sensitive. Calling 911 makes the details of your emergency — possibly every word you say in an extremely stressful situation — a public record, subject to endless radio and TV broadcasts. Reports say Ms. Wolozin thought Mr. Ledger was unconscious, not dead — so it’s quite reasonable that she wouldn’t have wanted him to come to and find himself embroiled in a tabloid scandal thanks to her 911-tape blabbing.

People also might not be eager to call 911 because it may cause them to be prosecuted for some victimless crime.

For example, Mr. Ledger’s bedroom apparently was strewn with various pills. We still don’t know (and I don’t much care) why Mr. Ledger had the pills. Ms. Wolozin likely didn’t know either. Under Supreme Court precedent, anything the authorities see in plain view in your house is subject to seizure without a warrant and can be used against you. So we can understand why many people who have an emergency related to illegal drugs would be reluctant to call for government help — and how needless death could result from this.

Incidentally, Ms. Wolozin allegedly was a victimless criminal, too: as the sharp legal minds at US magazine inform us, Ms. Wolozin apparently lacked a license to be a professional masseuse, which is a felony in New York. That is, of course, ridiculous. You don’t need such a license under California law, and amateur massage-giving runs rampant in California, New York, and everywhere else with few fatal results. New York’s law exists only to benefit established massage-givers at the expense of would-be competitors — and now gives Ms. Wolozin one more headache, thanks to US, which dutifully notified the authorities of her alleged infraction.

The gossip rags’ attempts to smear and destroy Ms. Wolozin because of her reaction under tragic circumstances are exceptionally unfair and mean-spirited, even by their already-low standards.

Moreover, the idea that calling 911 first is always the right answer is simple-minded and, in some situations, could prove deadly. This is not to say that you shouldn’t call 911 in a life-threatening emergency — but you can’t count on it to save you, either. And thanks to government’s ever-increasing intrusions on voluntary, victimless conduct, it might cause you even more problems than you had in the first place. So it’s best to be prepared to respond to emergencies in alternative ways, in addition to calling 911.

As for me, if I knew Mary-Kate Olsen and my life was on the line, I’d call her first, too.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Not long ago, attorneys across the United States organized to protest Pakistan President Pervez Musharraf’s move to dissolve that country’s Supreme Court. In city after city, black-clad lawyers ostentatiously assembled in public to send a message halfway around the world about the importance of the rule of law.

For sure, there’s bad stuff happening in Pakistan. So good for my fellow attorneys for objecting, even though something tells me President Musharraf isn’t much moved by the views of a bunch of American lawyers, if he even got wind of their protests at all.

But where were all those American attorneys over the past six years, as the Bush administration and both Republicans and Democrats in Congress have shredded our own Constitution and Bill of Rights? Apparently doing the same thing as most everyone else: going along, sheep-like, as our leaders take us down the path toward the total state.

Fortunately, at least one lawyer — Judge Andrew P. Napolitano — has taken notice of all that’s been going on right here at home.

His new book, A Nation of Sheep, documents just some of the many assaults upon our basic liberties that government at all levels has launched since Sept. 11, 2001.

For example, he describes how FBI agents can now write their own search warrants, called National Security Letters, and demand that businesses hand over your personal information. The FBI needn’t go through a judge and needn’t tell you that it even went looking for your information. In fact, under the USA Patriot Act, the person who received a National Security Letter is prohibited from telling you or anyone else that the FBI either sought or obtained information from them.

So much for the Fourth and First Amendments.

Then there’s the Bush administration’s wiretapping of Americans without a warrant or probable cause. A federal judge struck down the program for its obvious unconstitutionality. But the 6th U.S. Circuit Court of Appeals reversed that decision, upholding the program. Why? Because the plaintiffs could not prove they were victims of wiretaps. And why couldn’t they prove it? Because the records of who the NSA wiretaps are classified for "national security" reasons. (Judge Ronald Lee Gilman heroically dissented from this decision, to no avail.)

So much for the courts as the last-resort defenders of our liberties!

When the judicial branch teams up with the executive branch to tell us that the government can essentially do anything it wants in the name of national security, regardless of what the Constitution says, then it’s time for the kind of outrage that makes lawyers and everyone else take to the streets and demand their rights. Indeed, to the founders of our country, it meant doing a lot more than that.

Sadly, today, people in all walks of life are mostly content to just suffer the endless abuses of their freedom and privacy, distracting themselves with celebrity gossip and the latest consumer goods made possible in part by the easy credit the government also facilitates.

Is there hope for change? Judge Napolitano doesn’t see much, the masses of sheep being what they are.

But there is some cause for hope. Judge Napolitano points out that there is one (but only one!) presidential candidate who would respect the Constitution and undo all the damage that’s been done by George W. Bush and his predecessors: Congressman Ron Paul.

Then there’s the inflation and economic crisis that will likely result from all that easy credit. Maybe that will inspire the masses to reconsider their government’s benevolence — or, maybe it will make them flee into the arms of full-on fascism, as in Nazi Germany.

In the meantime, whatever they do, the most important thing you and I can do — assuming you aren’t content to be a sheep — is to educate ourselves about what our government’s up to, what it’s proper role should be, and how to protect ourselves. Reading Judge Napolitano’s book is a good step toward those ends.

Reprinted from the Orange County Register with permission.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Is Hillary Clinton a lousy tipper?

With war raging in Iraq, our leaders threatening another war with Iran and the dollar shrinking fast, you’d think the media would grapple with weightier questions.

But the issue of Sen. Clinton’s generosity, or lack thereof, toward an Iowa waitress has nonetheless managed to capture headlines and air time this month in outlets ranging from Fox News to NPR.

Whether Sen. Clinton tipped a given waitress is, of course, trivial. After all, waitresses everywhere are used to getting stiffed by unpleasant patrons.

Much more serious is Hillary Clinton’s participation in the systematic stealing of tips from waiters, waitresses, bartenders, bellhops and countless other U.S. service workers. Her partners in crime are most of her colleagues in Washington, including all the other contenders for the Democrat and Republican presidential nominations, with one exception.

Sen. Clinton and friends do this by endorsing our income tax system, which not only takes 10 percent of waiters’ and waitresses’ wages (often set below minimum wage) in taxes, but also forces them to report the amount they make in tips and hand over 10 percent of that, too.

In fact, only one presidential candidate has been truly decent to those who serve him dinner on the campaign trail: Rep. Ron Paul.

Rep. Paul — the physician who has made headlines primarily for his staunch opposition to the war in Iraq and his popularity and fund-raising success on the Internet — has introduced in Congress the Tax-Free Tips Act, which would make tips exempt from federal income and payroll taxes.

Rep. Paul’s proposal — leaving tips in the hands of those who receive them — avoids the usual welfare-state problems typically associated with programs to help people with low incomes. It rewards work, doesn’t promote class warfare and doesn’t require the legalized theft involved in taking from one person to give to another. Unlike other proposals to help the poor, it doesn’t create more bureaucracy, but instead removes it.

Anyway, those of us who give tips as a reward for good service hardly have it in mind to tip Uncle Sam for a job not-so-well done at the same time. We’re not required to tip at all (a point Mrs. Clinton seems to understand well), so those tips are simply gifts — and gifts are already tax-free to the receiver.

Exempting tips from taxes is thus so obviously fair and sensible that anyone who opposes it should bear the burden of explaining why.

Why does the federal government need to make every waiter and waitress’s life more difficult by taking a tiny bit of money from him or her, which means almost nothing to the government but could make all the difference to someone on the tightest of budgets struggling to make ends meet? Who could oppose a plan that puts more money in the pockets of millions of working Americans, with no additional government spending required?

To put this in perspective, consider the fact that the bottom 50 percent of taxpayers contribute just 3 percent of all income taxes. Presumably everyone whose livelihood depends on tips falls into that bottom 50 percent of earners. Therefore, tips comprise a small portion of that 3 percent of total income taxes — and virtually nothing compared with the total amount the government collects.

Some might argue that our heavily indebted government can’t afford to lose even that tiny sum. But on the spending side, Congress seems to have plenty of money to waste on pork, war, entitlements and so much else. If anyone’s going to do some belt-tightening, why shouldn’t it be our porcine politicians and bloated bureaucrats instead of the servers who attend to them as they’re wined and dined by lobbyists?

Maybe the real reason for taxing tips is to accustom people in what’s often their first jobs to ‘fessing up to their earnings and giving the IRS its due. Let them keep 100 percent of their tips, and next thing you know they may then even want to keep all of their money. Indeed, Ron Paul suggests that a 100 percent income-tax break for the rest of us would be a good idea, too. If government only did the things it’s authorized to do under the Constitution, it wouldn’t need to punish any of us for working.

Anyway, whoever becomes president, why not give those waiters, waitresses, and other servers a break? As long as she favors taking away workers’ tips, Hillary Clinton has a lot more explaining to do.

Reprinted from the Orange County Register with permission.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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The 1990s are back, it seems, as two of the decade’s most notorious figures, O.J. Simpson and Bill Clinton, have recently returned to the headlines.

O.J. seems to have given up on being remembered as anything other than a criminal.

Clinton, on the other hand, besides campaigning to get his wife and himself back in the White House, is also working hard to change his image and be remembered as something other than a party to history’s most famous act of oral sex.

Specifically, Clinton wants to be remembered as a great philanthropist. And he’s having no trouble finding media people to play along. Indeed, a fawning cover story in the October Atlantic Monthly suggests Clinton may one day be known "as a philanthropist who happened to have been president."

Bill Clinton, a philanthropist? Aren’t philanthropists usually people like Andrew Carnegie, who first make a lot of money and then give it away? Clinton never made a fortune as a captain of industry, and the only thing he’s ever been known for giving away is semen.

No, Bill Clinton isn’t a philanthropist in the usual sense. Rather, he wants to redefine philanthropy, sort of like how he redefined "is."

Clinton wants us to believe that his new philanthropy is superior, because of its supposed "entrepreneurial" nature and respect for markets and profit. Clinton says he understands that corporations are not charities. "I think it’s wrong to ask anyone to lose money," he says, and he claims he’s found a way to help the world’s poor while helping businesses make a profit at the same time.

That sounds good: the late Milton Friedman argued that corporations should never engage in charity, because they exist only to make their shareholders the most profit possible. Charitable work should be left to individuals and non-profit organizations.

But the Clinton scheme, if ingenious, isn’t quite the respecter of free markets some might suggest it is.

Let’s consider two projects that Clinton believes exemplify his foundation’s work.

First, Clinton sought to help fight HIV/AIDS in impoverished countries by making expensive drugs available at lower prices. Individually, those countries’ governments had little bargaining power to negotiate lower prices and couldn’t afford them in large quantities. Clinton’s foundation negotiated on behalf of a number of them together and as a result was able to get the drugs for them much more cheaply.

After that project, Clinton moved on to fluorescent light bulbs and other green technology. Prices for those things were high, too: The companies that made them didn’t have a predictable demand and weren’t producing enough of them to make them cheaply. City governments in the U.S. wanted to switch over, but couldn’t afford it. Again, Clinton’s foundation stepped in to negotiate low prices.

Clever. But the trouble with this innovative "philanthropy" is that it relies not on charity, but on theft.

True, in contrast with old-fashioned welfare statism or corporate guilt-tripping, Clinton isn’t seeking wealth transfers from big corporations to poor people. Instead, he’s seeking wealth transfers from you to big corporations that make politically correct products.

After all, who pays for all those drugs and light bulbs? Not Bill Clinton. The money for those products comes from governments — that is, from taxpayers. France, for example, gave millions for Bill Clinton’s AIDS drugs by imposing a new tax on air travel. The costs of those supposedly environmentally friendly technologies that city governments buy will, of course, be passed on to productive people in those cities.

Moreover, Clinton’s green-technology scheme distorts the market by causing companies to direct scarce resources toward products that are favored by politicians and away from what consumers want. As for those AIDS drugs, experts agree their prices would have fallen anyway.

The reality is, the free market doesn’t need help from Bill Clinton to serve society. It already produces the goods the masses want — not necessarily what politicians think they should want — at ever lower prices, with no third party forced to pay for them. Some parts of the globe suffer, but typically only where government impinges on markets and property rights. (For example, if Bill Clinton really wanted to help humanity, he might have lifted the deadly embargo against Iraq while president.)

If Bill Clinton wants to be a philanthropist, then he should make some honest money himself, and give that away instead of other people’s money. His speaking fees, which bring him millions each year, would be a good start, along with all (not just a portion) of his profits from his new book, "Giving," in which he tells the rest of us to give more of our money away.

For a future fund-raising project, Clinton might literally take a page from O.J.’s book and produce a pornographic movie titled "If I Did Have Sexual Relations with That Woman." It’s better, after all, to be remembered as a giving philanderer than as a phony philanthropist.

Reprinted from the Orange County Register with permission.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Ever wanted to see what goes on during a public session of the U.S. Supreme Court? You’re not alone. Unfortunately, unless you want to take a trip to Washington, you’ll probably never get so much as a glimpse — because the justices, who go back to work Monday for their new term, don’t want you to.

Justice Samuel Alito reiterated that position last summer while speaking to a group of students, professors, and lawyers at Pepperdine University Law School in Malibu. Alito said he doesn’t see why having cameras in the high court would be useful. After all, he explained, the Supreme Court is already one of the most transparent institutions in government. You can read the justices’ detailed opinions after they decide a case, and you can even download audio recordings of attorneys’ oral arguments and questioning from the justices.

According to Alito, people who want cameras in the courtroom just can’t explain why it’s important to also be able to see the justices’ and attorneys’ "lips moving" in addition to all the other information now provided.

But it’s easy to think of reasons why video would be helpful. Most Americans have no idea what goes on at the Supreme Court — none — except that somehow the court decides really important questions, like whether everyone in the country will be allowed to commit sodomy. Most Americans don’t have time to read the court’s often-lengthy opinions, and downloading and listening to audio recordings is more than a little cumbersome.

But if you could catch Supreme Court arguments on CSPAN — say, by accident while channel surfing — then many more people would know what goes on there.

I also attended the Pepperdine event, and afterward I approached Justice Alito and asked him what he thought about putting the court on cable.

He didn’t deny that televised oral arguments would increase the public’s awareness, but he said that it still wouldn’t be a good idea because "people act differently when they know they’re on camera." Even Supreme Court justices would play to the camera? Alito said yes, but after seeing him before the CSPAN cameras at Pepperdine, I’m inclined to give him more credit than that. Besides, it’s not like the justices need to worry about being reelected.

Then Alito added what he apparently considers to be the strongest argument against cameras: They wouldn’t really show what goes on inside the court, because the real work of the Court occurs when the justices read the paperwork in a case, then discuss it among themselves in their conference room.

Well, I asked, isn’t that just an argument for putting cameras in the conference room, too? Alito dismissed that idea with a laugh. "That would make things different!"

But why not do it? Lots of dealing goes on behind the scenes in Congress, but at least we ultimately get to see our senators and representatives argue it out. We can’t vote the justices out of office, so shouldn’t we at least be allowed to keep really close tabs on them? What do they have to hide from the people who pay their salaries? Unlike the executive branch, the Supreme Court doesn’t have the convenient excuse of national security. You could argue that the justices would be less inclined to speak freely if they knew that their words were being broadcast around the world — but if we have justices who are afraid to speak their minds openly, just what kind of people are we appointing, anyway?

And hang on a minute — didn’t Alito say earlier that the court is already transparent enough because we can read its opinions after a case is decided? That doesn’t seem very consistent with his claim, stated to me, that the real work of the court goes on in secret, behind closed doors.

Alito didn’t mention it, but I’m sure the justices are aware that cameras would come with a personal cost to each of them: They would no longer enjoy the mystique that has shrouded the court for so long. Their every public pronouncement would become less newsworthy. And the justices would seem more human, and less like black-robed gods, if their faces and voices became too familiar, and their occasional gaffes or statements out of context could be exploited by the likes of Jon Stewart and David Letterman.

Those who favor a powerful federal government that appears fearsome, omnipotent and unassailable have, therefore, a strong reason to oppose cameras in the Supreme Court. But those who share the view of our founding fathers — that citizens should always keep in mind that we are governed by highly fallible men who are not to be trusted — should call for cameras. And that means cameras in the courtroom, in the conference room and anywhere else they can help us keep an eye on those who would assume the power to make decisions that affect all of us.

Reprinted from the Orange County Register with permission.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Rocker Ted Nugent has attracted attention lately with a video shot during his recent concert at Anaheim’s House of Blues.

In the video, which has made the rounds online and on television, Nugent stands onstage with an AR-15 semiautomatic rifle in each hand. First he tells of his recent visit to Chicago, during which he claims he said to Sen. Barack Obama, "Hey, Obama! You might want to suck on one of these [guns], you punk!" Nugent adds, "Obama, he’s a piece of s—, and I told him to suck on my machine gun. Let’s hear it for him!"

Nugent then relays details of a recent visit to New York, during which he putatively conveyed a similar message to another Democratic presidential candidate, Sen. Hillary Clinton: "Hey, Hillary! You might want to ride one of these [guns]into the sunset, you worthless b—-!" Then he shares similar messages he said he was planning to deliver to California Democratic Sens. Dianne Feinstein and Barbara Boxer during his concert tour of the Golden State.

In the video, the crowd seems wholly receptive to Nugent’s ideas. He knows his audience, and no doubt reasonably expected that people who like to hear him sing "Wang Dang Sweet Poontang" and watch him make a guitar explode by shooting it with a flaming arrow would also appreciate the form and content of his political message.

Once the video of Nugent’s antics hit the Internet, the reaction from the Left was predictable. A Rolling Stone blog headline was typical, gasping: "Ted Nugent Threatens to Kill Barack Obama and Hillary Clinton During Vicious Onstage Rant!" Nugent was scolded from the right, too. Guest-hosting Fox News’ "The O’Reilly Factor," former congressman John Kasich told Nugent that such comments should be "out of bounds." The problem with politics today, said Kasich, is that it’s "being ruined because people are being polarized because of the personal attacks and innuendoes being labeled at people (sic)."

What nonsense!

Personal attacks and innuendo are the least of our political problems. Certainly our leaders’ character and behavior have not entitled them to better treatment than they get (which is usually fawning, anyway, especially from TV hosts).

The real problem is one that Nugent and his audience apparently understand: Politicians such as Obama, Clinton, Feinstein and Boxer presume to run our lives from Washington. Specifically, and not coincidentally, all four of Nugent’s rhetorical targets are egregious offenders against the critically important right to keep and bear arms.

In his bestselling book, Obama specifically advocates "keeping guns out of the inner cities." Presumably this means he favors gun bans like that of his hometown, Chicago, where crime victims are prohibited from protecting themselves, giving criminals even more confidence that they won’t meet armed resistance. Hillary likewise favors increased controls, including a desire (shared with Sen. Feinstein) to force people to take a course and become licensed before they can exercise their rights.

These are not trivial points, of interest only to the kind of people who frequent gun shows and Ted Nugent concerts; they’re matters of life and death for the thousands of people each year who use a firearm to save their lives (often simply by brandishing it), to say nothing of the lives that are saved in cities where there is less violent crime simply because criminals know their would-be victims may be armed. (Economist John Lott documents this well in his classic book, More Guns Less Crime.)

An armed populace is also, of course, an important means of keeping overzealous politicians in check, which gets to the real reason why the likes of Hillary Clinton are so afraid of them when they’re in the hands of anyone outside government.

One might observe that these Second Amendment points are well and good, but Nugent’s vulgar tirade is far beneath the lofty ideals of our founders. And I’ll grant you that it’s hard to say how American history would have progressed if, rather than saying "Give me or liberty or give me death!" before the Virginia House of Burgesses, Patrick Henry had instead taken the stage at a local pub, straddled a cannon and hurled some vintage 18th century invective at King George.

But, hey, that kind of stuff has its place. If Americans are ever going to cast off their ever-more-offensive federal government, they’re going to need rabble-rousers like Ted Nugent to stir them up, not make-nice types like John Kasich (himself a gun grabber during his days in Congress), telling them to calm down.

So Ted Nugent should go right on disrespectfully waving his guns in the faces of aspiring tyrants, until the day they apologize — for their obscene attacks on our liberty.

Reprinted from the Orange County Register with permission.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Paris Hilton finally finishes her much-publicized 23-day prison stint today, but as far as I’m concerned her release comes 23 days too late.

Never mind the obvious unfairness of making her serve a longer sentence than everyone else who commits the same crime simply because she’s rich and famous, though that’s bad enough.

The more important question is, what real crime has she committed?

Initially, she was fined and given 36 months probation for driving under the influence of alcohol. Her blood alcohol level was 0.08%, the minimum to support an arrest. The minimum level used to be 0.10%, so there was a time when she wouldn’t have been arrested at all for driving in the exact same condition. But in the year 2000, Bill Clinton and Congress used bribes to states through highway funding to make them move the blood alcohol limit down. And Paris Hilton is in jail only because of this entirely arbitrary government fiat.

Whether the level is 0.08% or 0.10%, why should someone’s blood alcohol level in itself be a crime?

Maybe having that much alcohol in their blood makes some people less likely to drive safely. But there are lots of perfectly legal things that can make you a less safe driver. Cell phones and ipods are common distractions. A law school professor of mine was known to read books while driving. Then there’s one of the biggest, most dangerous distractions: the person sitting next to you. And don’t forget noisy kids in the back seat. All legal, at least for now, despite putting other drivers at an increased risk of collision. (In California, using a cell phone while driving will get you a $20 ticket — a far cry from prison — beginning in December 2008.)

Why should alcohol consumers be singled out for punishment — as demanded by the 19th century Woman’s Christian Temperance Union — except that the prohibitionists’ modern-day counterparts, such as Mothers Against Drunk Driving, are organized against them?

And there’s still more discrimination involved: because men on average are larger and heavier than women, men can consume more alcohol than women without reaching the magic number set by our federal overseers who say when we should say when. Could Paris be a victim of unlawful gender bias here? Where are the feminists on this one?

In general, we don’t punish people because of some factor that may simply make them statistically more likely to harm others. Instead, we punish people only when they actually harm someone else. If we arrested people based on statistics, rather than their own culpability, members of demographic groups most likely to commit violent crimes could find themselves arrested merely for walking the streets at night. Certainly no one would approve of that outrageous result — and there is no reason why peaceful alcohol consumers should receive such unfair treatment, whether they’re driving, walking, riding a bicycle, or sitting on a park bench.

Miss Hilton is in jail now not for the drunk driving itself, but for driving again after her license was suspended. This too is an injustice.

After all, driver’s licenses have nothing to do with safe driving. As anyone who’s traveled Los Angeles freeways knows, having a license does not make one a competent driver. And there are plenty of people without a license who undoubtedly would be fine drivers. Even without licensing, you already have a much stronger incentive to drive safely than the government could ever provide: your own life is at stake each time you get behind the wheel.

Instead of ensuring safety, driver’s licenses serve as a money-maker for the state. Worse, under the federal Real ID act, they will be a de facto national identification card, compromising everyone’s liberty and privacy. We are on a slippery slope from driver’s licenses to “Your papers please!” and ultimately it may take widespread civil disobedience to stop it. I’m reasonably confident Paris Hilton didn’t have that in mind when she broke the law, but she was justified in doing it all the same.

So although I’ve never watched her tv series or her sex video (really!), and I doubt whether she will produce anything I will want to consume in the future, I welcome Paris Hilton back to society — to which she never owed any debt, and which, despite her millions, may owe her something for her unwarranted trouble.

This article originally appeared in the Orange County Register.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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What secret activity went on in the garage of a seemingly friendly, well-liked, balding sixty-year-old Florida man before police surrounded his house and arrested him on two felony charges?

The Palm Beach County sheriff’s department, the man’s neighbors, and the man himself — Roger Bean — all agree: the u201Ccrimeu201D was making dentures and temporary bridges for grateful customers at a mere fraction of the price dentists charge.

Instead of $2,000 dentures from a dentist, Mr. Bean’s clients got their dentures from him, fitted, for as little as $200.

An anonymous tip supposedly made police aware of Mr. Bean’s u201Ccrimes.u201D But news reports reveal Mr. Bean’s neighbors and customers had no cause for complaint.

A nearby resident, Linda Armantrout, said u201Che’s the best neighbor we’ve got.u201D The head of the neighborhood crime watch, 73-year-old Ron St. Mary, said that Mr. Bean is not a criminal because he is u201Chelping the old people who don’t have a few dollars,u201D and added, u201CI think the world of him.u201D

Yet another local resident warned Mr. Bean when she saw the sheriff’s detectives coming. She’ll be charged with obstruction of justice for having done him the neighborly favor.

Since the customers are happy, and Mr. Bean isn’t dealing in anything that stands to harm innocent third parties, like nuclear weapons, why the fuss?

Mr. Bean calls himself a u201Cdenturist.u201D In some states, you can be a denturist without a dentistry license. But not in Florida. In Florida, at least according to Palm Beach County detective Don Zumpano, if you provide dentures without a license, you’re not a dentist, and you’re not a u201Cdenturistu201D — you’re a felon.

But why should it be criminal, let alone a felony, to peacefully provide a service to paying customers — especially where licensed providers often charge exorbitant amounts?

The late Nobel economics laureate Milton Friedman explained why in his book Capitalism and Freedom. Looking at the evidence, he discovered that dentists — and doctors, lawyers, barbers, and members of other professions which require licenses — do not want competition from the likes of Roger Bean, and thus lobby for laws to keep competitors out.

Dentists want to restrict the number of people who can provide services like theirs, and thereby drive prices up. This benefits dentists, but costs consumers. It seems there is too much money to be made in making and fitting dentures for dentists to let just anyone do it.

Sure, the dentists won’t admit that, but how could they? Instead, they claim it’s u201Cto protect the publicu201D — which goes down easier than simply saying, u201CWe want more money.u201D

Detective Zumpano apparently buys the dentists’ line, saying there are u201Chealth risks with operating this facility outside of your house.u201D Dr. Phil Bilger, dental director of the local health department, predictably claims that there’s u201Ca whole issue of infection controlu201D that require dentures to be fitted by a licensed dentist.

But it’s unclear that Mr. Bean’s customers were at any greater risk of infection than most dentists’ patients. Even if his garage seemed u201Cfilthyu201D to detectives, as they claim, the fact is that no customers reported problems with infection or anything else. Instead — as with so many other victimless crimes — police had to set up a sting to catch Mr. Bean.

And even if some unlicensed dentists or denturists worked under conditions that were somewhat less than perfectly sanitary, or even if their dentures weren’t as good as the ones you can get from a licensed dentist — so what?

As Dr. Friedman pointed out, people looking to buy a car aren’t forced to by a Cadillac. Instead, you’re relatively free to choose how much quality and safety you want. So why should all dental service consumers be forced to pay for Cadillac quality? Sure, your mouth and your health are really important — but they’re important to you, so why shouldn’t it be your decision?

Dr. Bilger raises another dubious argument, claiming that denturists like Mr. Bean u201Care not licensed in this state, so they’re not held to any standard of care.u201D That’s simply not true. If someone were harmed by the likes of Mr. Bean — and, again, there is no evidence at all that anyone was harmed — they could sue him for negligence.

When police came for Mr. Bean, one neighbor was heard to yell, u201CYou should be ashamed of yourselves!u201D In fairness, we might say that the police were just doing their jobs—although undoubtedly there are enough real crimes like murder, rape, and theft being committed in Palm Beach County that police resources would be better spent elsewhere than on busy-work.

The people who have no excuse in this are Florida’s lawmakers and the gatekeepers of the dental profession, who use the government to prevent people like Roger Bean from earning an honest living, and force elderly customers to pay dentists high prices for dentures they need.

This article originally appeared in the Palm Beach Post.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Another billionaire made news this month for paying Russia millions to take him into space. Specifically, American Charles Simonyi — who helped develop Microsoft Word — paid $25 million for a 13-day ride in a Soyuz capsule with two cosmonauts, making him the fifth such space tourist.

Space tourism is rare enough that each flight still makes headlines, but that may soon change. Richard Branson’s Virgin Galactic plans the inaugural flight of its VSS Enterprise in about a year and plans to begin regular space flights, each with six passengers, in 2009. Another company, Constellation Services International, is preparing to take passengers on trips around the moon. Still others are planning a space hotel.

To many people, stories about space tourism may look like little more than frivolous fun for the superrich — not much different than a recent news item about a New York City restaurant that offers a $1,000 pizza to people with money to burn.

But space tourism stands to benefit more people than a few billionaires — and private space travel in general offers an opportunity to scrap our wasteful, obsolete government space program.

With space travel, as with many new products, the very rich are the early adopters who make it affordable for those of lesser means in the long run. For example, the first DVD players cost about $1,000. Today anyone can afford one, because many cost $50 or less — about 95 percent off their original price.

Yet space flight will likely remain very expensive for a long time. Even the first Virgin Galactic flights will cost $200,000 — less than 10 percent of what Simonyi paid for his flight. By comparison, consider that the proposed price of a Virgin Galactic flight is less than the cost of two new Hummer H1′s — and you see plenty of those being driven by people who may not be poor, but probably aren’t exactly members of the upper crust, either.

So, sure, space flights will be expensive, but they will become something that anyone who is driven to make the money can enjoy; a dream within the reach of virtually every American with the determination to achieve it.

Compare that with the common man’s prospects of going to space through NASA.

If you are one of the 100 or so applicants whom NASA selects as astronaut candidates every two years, you first have to undergo two years of rigorous training. Then you may or may not be selected to go on a shuttle mission — and since each of those missions has seven people on its crew, your chances are still slim to none. In any event, the recent revelations involving former astronaut Lisa Marie Nowak suggests that NASA’s methods for selecting those lucky few for space travel may not be the soundest.

With space tourism, it’s much simpler: you come up with the money (earning it however you see fit, rather than as a slave to NASA), and you get to go. No intense competition, no extreme stress, no diaper-clad emotional breakdowns involved.

As space tourism takes off, some wonder what the government’s role will be. In Russia, there are complaints that cosmonauts may be reduced to "space cabbies" as the government uses Soyuz capsules to make money from hauling freight like Mr. Simonyi. But whatever the cosmonauts may think, presumably, Russian citizens would rather their government earn its money that way than through taxes burdening their already-depressed economy.

NASA, meanwhile, pretends to be relevant. The space shuttle gets the public’s attention only when it narrowly avoids, or occasionally meets, disaster. One hears proposals for new projects such as a mission to Mars, or a permanent moon base — price tag: $10 billion per year — but no one at NASA or anywhere else seems clear on why we should even go or, more importantly, why taxpayers should be forced against their will to foot the bill.

Indeed, with private parties ready to take space travel into their own hands, now is an ideal time to reconsider whether government should be in the space business at all.

If space travel has benefits that outweigh its costs, presumably people like Charles Simonyi will voluntarily pay for them. If there are sufficient benefits from space that can be shared with people on Earth — discoveries to be made, or minerals to be mined, for example — space entrepreneurs like Richard Branson will put up the money to bring them back.

And if the benefits aren’t great enough to attract their money, why go? That is, why should we all be forced to pay for a few astronauts to experience the joys of space travel?

Space tourism is likely the beginning of an exciting future full of private ventures into space. It’s time now for government to step aside and let the productive sector of the economy make the dream of the final frontier possible for the rest of us.

This article first appeared in the Orange County Register.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Americans have long ignored the space program, only to have their interest momentarily reawakened by occasional news of yet another colossal failure, or announcements of grandiose plans to send people beyond Earth’s orbit.

The latter, playing upon Star Trek-fueled fantasies, inevitably come when NASA wants more money. Thus, NASA announced last month that it needs at least $10 billion per year of your tax dollars, this time, to put a base on the moon by 2024.

Without question, a base on the moon sounds infinitely more interesting than more space shuttle launches. After all, the shuttle doesn’t really go anywhere and only makes headlines for narrowly avoiding (and occasionally meeting with) tragic disaster.

But are there good reasons for you and me to pay for more moon missions, let alone spend $10 billion a year to build a base there, other than that it sounds neat?

One reason to think not is that NASA itself doesn’t seem to know why it wants to go.

That’s probably why NASA recently performed a study to come up with a list of 200 "lunar exploration objectives" — that is, things people could do on the moon if we went there. And the list is not persuasive.

At the top of NASA’s list is "expanding human civilization" — that is, preparing for the eventual human settlement of space. As a human and a fan of civilization, this sounds kind of good to me.

But who wants to live on the moon? Most people don’t want to live in the desert, or on a tiny island in the middle of the ocean, or in Kansas, because there isn’t anything or anyone around.

As Elton John and William Shatner have memorably noted in song, living in space would be far worse: no heat, no air, no water, no people, no trees — nothing.

Sure, maybe someday Earth will be so crowded or unpleasant that people would find it worth moving to the moon. But probably not. For example, even the most extreme global-warming scenarios wouldn’t make Earth nearly as uninhabitable as the moon. Anyway, until then, why take money from everyone for something that few people outside of sci-fi novels want to do?

Another reason NASA offers is scientific research. But a lot of scientific research could be done right here on Earth with $10 billion a year, and with a lot more practical value. It could be used to find cures for diseases, for example, or to develop other products of all kinds that could improve our lives.

Entrepreneurs would better know what to do with this money if it were left in the private sector, because to succeed they have to figure out what people really want so they can provide products that people will voluntarily buy. Whenever government removes resources from the market, it prevents entrepreneurs from serving consumers with those resources, and instead serves special interests and bureaucrats — like the people seeking job security at NASA who have their hands out for more money.

That’s why another one of NASA’s stated reasons for going to the moon, "economic expansion," is just silly. If it made economic sense to go to the moon for minerals and other resources, entrepreneurs would be doing that already. The profits from the minerals would be greater than the costs of developing and launching a spaceship, extracting the minerals and bringing them back. But spending $100 billion on spaceships to get, say, $50 billion in resources would be irrational — unless, of course, you’re in government and are not held accountable for your wasteful activities. Apparently that’s what NASA wants.

Still, I can’t deny that there’s something inherently exciting about the idea of space travel. I too enjoy Star Trek, Robert Heinlein novels and the like. But government’s efforts in space have entailed endless waste and repeated failure.

Sure, people someday will go to the moon and beyond. But we should go when we are wealthy enough here on Earth that no one needs to be forced to pay for it.

This article first appeared in the Baltimore Sun.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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That said, the Florida Supreme Court’s decision is, as you might imagine, terrible. They had two ways they could have struck down the statute, and they chose the stupid way. The other way they could have gone — applying Florida’s so-called "Blaine Amendment" — would have been a fine, entirely libertarian ground for abolishing the voucher program. Indeed, as we’ll see below, the "Blaine Amendments" in various states’ constitutions — though much decried by certain self-styled libertarians — are, in fact, entirely libertarian and an excellent means of combating the voucher menace.

The Florida Decision

The grounds on which the Florida Supreme Court rested its decision are, to say the least, indubitably dubious. Florida’s voucher program allowed students in "failing" government schools to take the money that was being spent on them at their government school and spend it at a state-approved private school. The Court held that this violated Article IX, section 1, of Florida’s constitution, which provides:

The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education. . . . (emphasis added).

The Court held that when the legislature takes money from government schools to give it to private schools, it "undermines the system of ‘high quality’ free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida."

What a joke! First, of course, there is the doubly oxymoronic phrase "’high quality’ free public schools." And in any event, how can we know that taking a proportional amount of money away from the government schools for students they no longer have to teach will undermine the quality of the remaining students’ education? But the court was not joking; it was dead serious.

The Court also held that giving government money to private schools through the voucher program would violate the Florida constitution’s mandate for "uniform" schools. After all, said the Court, government schools are required to teach, among other things, "African-American history, the history of the Holocaust, and the study of Hispanic and women’s contributions to the United States," and private schools are not. Of course, you know what that means: next time the voucher advocates will have to make sure private schools are legally forced to teach that stuff. And isn’t that part of what their little statist stunts are about?

There was more, but you get the idea: the justices in the majority didn’t like the program to the extent that they, like the hysterical teachers’ unions, believed it would undermine the state’s education monopoly. The irony, of course, is that leftist voucher opponents are wrong — vouchers would, over the long run, turn private schools into "uniform" government schools, as I explained in "Independent Schools at Risk."

The "Blaine Amendment": The Libertarian Alternative

The plaintiffs in this lawsuit challenged the voucher program on two grounds: the silly one we’ve just discussed and the ground that the voucher program violates Article I, Section 3, of the Florida constitution — otherwise known as the "Blaine Amendment." It provides:

There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. (emphasis added).

What libertarian could possibly object to the last sentence? It simply tells the government, in no uncertain terms: no spending on this! As far as genuine libertarians are concerned, constitutions need as many spending limitations as possible.

Yet the DC faux libertarian crowd hates this provision and others like it around the country. In its brief, the Institute for Justice — which represented one of the welfare voucher recipients in the Florida case — tries to argue that the words “directly or indirectly” are somehow ambiguous and the state really can give money to “sectarian institutions,” as long as it channels it through students. But given that the students can only spend their voucher money at a state-approved list of schools — including religious schools — that sure seems like indirect aid to religious schools to me.

Elsewhere, Establishment libertarians condemn Blaine Amendments, because they’re allegedly the product of bigotry (that most heinous of all possible crimes, which we all know is worse than statism) against Catholics. And that is, to an extent, true. The man who inspired them, James Blaine (1830—1893), fought for a similar amendment to the United States constitution. The proposed federal amendment failed, but most of the states subsequently passed "Blaine Amendments" of their own. And in some cases, the Amendments were supported by anti-Catholic evangelical Protestants.

Well, so what? If Catholic schools were, in fact, trying to get their hands on government money, well, then — though I have little but admiration for the Catholic Church — thank God for Blaine Amendments.

Of course, many of the Blaine Amendments’ supporters didn’t just want to keep government money out of the hands of Catholics, but specifically out of the hands of immigrants who happened to be Catholic. And what’s wrong with that? I thought even open-borders libertarians wanted to restrict immigrants’ access to welfare benefits for obvious reasons.

Anyway, if an existing law achieves good ends, who cares what originally motivated it? It is a fallacious ad hominem argument to say that Blaine Amendments are bad because some of their supporters were bigots. Good legal interpretation is a matter of looking at a text’s plain meaning — not judging the authors’ (or, more ridiculously, the supporters’) feelings. And to have success on any political issues, libertarians will have to side, from time to time, with individuals motivated by something other than a pure love of liberty for liberty’s sake. So what? Besides, it’s not as though Blaine Amendments remain on the books because of anyone’s anti-Catholicism.

So, seriosos, get over it. Blaine Amendments are nothing if not libertarian. Rather than try to abolish them across the land — as Clint Bolick of the Alliance for School Choice has stated is his goal — libertarians should seek to enforce them and see them enacted in even more states, to curb government spending and keep the state’s hands off private schools to the maximum extent possible.

Conclusion

Florida is fortunate to be free from vouchers, even if cursed with a lousy Supreme Court. As the voucher wars move on to other states, libertarians should look carefully at what the law really says, and remember that all government spending is bad government spending.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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Thus we are presented with an article from the Cato Institute, by George Mason University law professor Ilya Somin, praising Alito’s "libertarian streak."

Let’s look at what he says — and why Alito doesn’t have anything even close to "libertarian streak."

Alito and Religious Freedom

Professor Somin begins by repeating Benjamin Shapiro’s line that Alito is great on religious freedom:

In sharp contrast to Scalia, Alito has often voted in favor of the free exercise rights of minority religious groups, even against laws that are not deliberately intended to harm minority religions. In Fraternal Order of Police v. City of Newark (1999), he joined an opinion holding that Muslim police officers had a right to grow beards (as required by their religion) so long as the city allowed a secular health-related exemption from its no-beard policy.

As in my previous piece on Alito, I ask: Who cares whether some cop gets to wear a beard? And why, in any event, should the federal government dictate the terms of local police departments’ employment agreements, any more than it should dictate those of private employers? Libertarianism isn’t about freedom for cops; it’s about freedom for people who just want government to leave them alone.

The next case Professor Somin cites is somewhat easier for a libertarian to appreciate: In Blackhawk v. Pennsylvania, Alito held that the Pennsylvania Game Commission could not require an Indian who kept two “holy” black bears on his property to get a permit and pay a fee.

Even if you don’t have a problem with the federal government controlling state governments like this (I do), you should be aware that this decision, though libertarian in outcome, does not reflect a "libertarian streak" in Alito.

Instead, this decision, like the cops-with-beards decision, turns on the fact that the rule being enforced made some exceptions for secular purposes, but not for religious purposes. Specifically, the statute exempted zoos and circuses from the fee requirement — but the lawmakers somehow didn’t think to exempt people who worship bear gods. Alito held, in essence, that the state could not justify making an exception for those secular people and not for bear people who want to use animals for religious purposes.

And, I agree, that’s not fair.

But Alito made clear that he would have had no problem with the law at issue if it forced everyone to pay a fee, religious and non-religious alike. Thus, we can see that Alito’s decision could just as easily push the law in a non-libertarian direction (when the state legislature reacts to it) as a libertarian direction. Alito’s opinion provides no basis for concluding that he favors one outcome over the other.

Alito and the Commerce Clause

How ironic, after praising Alito for stepping on state governments’ restrictions on religion, that Mr. Somin next praises Alito as an ally of federalism! He writes:

Alito also differs from Scalia on the key issue of federalism. In United States v. Rybar (1996), Alito dissented from a case upholding a federal statute banning machine gun possession. Alito argued that a categorical ban on the intrastate ownership of machine guns falls outside of Congress’s power to regulate interstate commerce. The case cannot be explained, as some might believe, on the grounds that Alito somehow sympathizes with private ownership of machine guns. In the opinion, he favorably refers to state bans on machine gun possession. Alito’s position differs from Scalia’s recent opinion in Gonzales v. Raich, where the Justice argued that the commerce power justified upholding a federal ban on the possession of marijuana, even for noncommercial medical purposes permitted under state law.

Professor Somin echoes a number of people, perhaps well-intentioned but nonetheless mistaken, who have written to me saying, "But Alito’s good on the Commerce Clause!"

It’s true, of course, that "intrastate ownership of machine guns falls outside Congress’s power to regulate interstate commerce." But is that what Alito really said in his Rybar dissent?

Yes, he would have struck down the federal statute banning intrastate machine gun possession on Commerce Clause grounds. But then he added the following:

I would view this case differently if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce.

So Alito did not say Congress cannot regulate intrastate machine gun possession. He only said that it can’t do so unless it "finds" that machine-gun possession "has a substantial effect on interstate commerce."

Do you think Congress would have any trouble "finding" that? I don’t — and I’m sure Judge Alito doesn’t, either. That’s why he’s saying to Congress, "Hey, guys, make some findings next time so we don’t have to strike down your law!" His interpretation of the Commerce Clause would not place anything off limits for Congress.

If you want to see an opinion that, though still not perfect, genuinely shows a "libertarian streak" with respect to the Commerce Clause, look at Justice Thomas’s concurrence in United States v. Lopez. Then contrast it with what Alito wrote.

Alito and Free Speech

Mr. Somin continues:

Additionally, Alito has taken important libertarian positions on free speech issues. In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students’ religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of “harassment” and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito’s jurisprudence.

The first opinion here has little to do with the libertarian concept of free speech — i.e., the idea that you can say what you like on your own private property. Instead, it involves a typical battle over speech on government property.

It is perfectly respectable, of course, to say that as long as the government owns property on which people can speak, it shouldn’t discriminate based upon viewpoints. On the other hand, I’m not sure all libertarians would be willing to go all the way with this idea, and agree with the ACLU that NAMBLA should be allowed to hold meetings in public libraries — as, incidentally, it has, thanks to some judges’ ideas on its First Amendment rights.

Regardless of your views on that, are speech restrictions on government property one of the "most important threats to free expression today"? What about the many worse ways in which government stifles speech on private property?

The Pitt News case, I will concede, appears to reach an appropriate libertarian conclusion about commercial speech (ignoring, for the moment, that once again Alito favors federal power over the states).

Well, so what? So Alito has one or two good free-speech cases. So do all judges — we have, after all, a rather liberal First Amendment. Do one or two such cases a "streak" make? If so, where is Professor Somin’s article on John Paul Stevens’s "libertarian streak"?

Alito and Immigration

Somin says:

Alito showed some libertarian leanings in a key immigration case. In Fatin v. INS (1993), he wrote an opinion holding that an Iranian woman could be entitled to refugee status based on the Iranian government’s oppression of women and on her support for women’s rights. Fatin was not a constitutional case, and was partially based on deference to agency judgment. Still, Alito embraced a more expansive vision of refugee rights than is accepted by many conservatives, and advocated a broad definition of asylum rights for victims of gender-based persecution.

Mr. Somin’s summary of Fatin omits one critical fact: Alito sent the woman back to Iran! I’m not sure what aspect of the decision’s dicta pleases Somin so much, but I like this quote from it:

Here, while we assume for the sake of argument that requiring some women to wear chadors may be so abhorrent to them that it would be tantamount to persecution, this requirement clearly does not constitute persecution for all women.

Yes, some women might really hate being forced to wear chadors, but you look like you can take it, so back you go! And notice that he carefully says, in the above quote and elsewhere in the opinion, that he accepts the premise that this could be persecution only "for the sake of argument."

In fairness, I probably would have reached the same conclusion as Alito in this case, because the law requires an extremely high level of deference to a deportation decision. Indeed, in this instance, my problem is not with Judge Alito so much as with Mr. Somin, for giving a phony impression of what happened in the case and suggesting that there was something libertarian about it when, as far as I can tell, there was not, in either outcome or reasoning.

Conclusion

Judge Alito has an unusually lengthy history of judicial opinions and other writings from which we can form ideas about his view of the law. From all of this, Professor Somin has taken a tiny handful of cases to make his case that Alito has a "libertarian streak" — and, as we have seen, even most of those cases provide no evidence for any such claim.

I won’t speculate as to why an ostensibly libertarian organization would want to get behind Judge Alito, or anyone George W. Bush would consider worthy of the Supreme Court, let alone stretch so far to do so. They, of course, can waste their time and efforts however they like — I’m rather confident that Alito will be confirmed with or without their help.

I only hope no one is taken in by their campaign, and moved to spend their own resources supporting this unmistakably statist judge on the bogus premise that doing so will somehow advance liberty.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

J.H. Huebert Archives

Your most recent move is such a "brilliant stroke," such a "triumph" for all who value limited government, that any blunders you may have made in the past seem insignificant. Yes, now all we must do is sit back and enjoy as the "Supreme Court will turn away from self-worship, back toward the Constitution" and the American people will reap the benefits. And that is because we will soon have a "true constitutionalist" on the bench.

These are not my thoughts, of course, but a paraphrase (with quotes) of a column by 21-year-old neocon columnist Benjamin Shapiro, who could not be more delighted with President Bush’s nomination of Judge Samuel Alito to the United States Supreme Court.

But even if we don’t want to give President Bush that much credit, isn’t Alito a relatively good choice? Isn’t he at least better than the undeniably unqualified professional sycophant, Harriet Miers, and therefore, as the Cato Institute’s Mark Moller has put it, "a step in the right direction"?

President Bush has given us no reason to be anything but skeptical of such claims. So let’s look at Judge Alito more closely via an analysis of Mr. Shapiro’s effusive praise.

Alito and Stare Decisis

Mr. Shapiro writes:

Alito is the judge true constitutionalists have been waiting for. He is no enigma. He reads the Constitution as it was meant when it was written, and he is not afraid to challenge precedent.

Of course, willingness to challenge precedent is a good thing — indeed, it’s essential to being a good Supreme Court justice, given all the atrocious precedents the Court works under today.

But what basis do we have for believing Judge Alito would do this? He has been on the United States Court of Appeals for 15 years, and Court of Appeals judges generally do not have the power to overturn precedents — they just apply them.

Judge Alito could have used his opinions there as a forum to suggest the Supreme Court should overturn some terrible precedents — but I am unaware of (and Mr. Shapiro does not point to) any occasions on which Judge Alito did this.

Instead, Mr. Shapiro’s sole piece of evidence on Judge Alito’s stare decisis views is a 1986 University of Pittsburgh Law Review article in which he says Alito "railed against an 1886 decision of the Supreme Court."

Well, it turns out this law review article is available online — so click this link, but first get the champagne bottle ready, so you can start celebrating limited government’s impending triumphant return.

Or not. The case we are to believe Alito boldly "railed against" was Boyd v. United States — a decision a liberal Supreme Court had already unanimously overturned ten years before Alito published his article. Alito simply listed the "brute force of stare decisis" as one reason, among several, why the Boyd precedent had stuck around for so long.

Indeed, let’s look at Alito’s exact language:

In view of [its] manifest flaws, it is appropriate to ask why Boyd has endured so long. Several reasons may be posited. The brute force of stare decisis bears some responsibility, as does Boyd’s stirring rhetoric.

And that is all Alito says about stare decisis in the entire article. This can hardly be read as a condemnation of stare decisis any more than it can be read as a condemnation of "stirring rhetoric."

(By the way, the Court’s decision to overturn Boyd, which Alito applauds — right or wrong from an originalist perspective — weakened constitutional protection of individuals’ private papers.)

On the other hand, we have much more direct evidence that Alito would leave bad precedents undisturbed.

One of his former law clerks, a leftist, says in this article that, based on her first-hand experiences with Alito, she believes he would be disinclined to overturn precedent, and that his approach would likely resemble that of Chief Justice Roberts, whom Shapiro doesn’t like.

Then there is Alito himself, who in recent conversation with Senator Arlen Specter assured the Senator that he believes in stare decisis and recognizes the "right to privacy" invented in Griswold v. Connecticut, which created constitutional right to birth control and underpins the court’s abortion jurisprudence.

If he believes that decision should stand, then just what would he overturn?

Alito and "Originalist Ideals"

Mr. Shapiro cites Alito’s dissent in the Third Circuit’s Planned Parenthood v. Casey decision as reflecting his "originalist ideals."

There, the court majority held that a Pennsylvania law requiring a spouse to notify her husband before getting an abortion was unconstitutional because it "unduly burdened" a woman’s "right" to an abortion.

Did Alito dissent by saying, "Are you people crazy? Where is there a right to get an abortion in the Constitution, let alone a right to get one without telling your husband?"

No. He simply disagreed with the majority’s interpretation of the words "undue burden," as the decidedly non-originalist Justice O’Connor had used that term in Supreme Court opinions. Whether this was the right thing to do in light of binding Supreme Court precedent, we could debate — but there is nothing remotely "originalist" about it.

In deciding whether one can reasonably call Alito an originalist, let’s turn again to what one of his law clerks has said. Here’s former Alito clerk Nora Demleitner, quoted in the Legal Times:

"He’s not an originalist; that’s the most important thing. I don’t see him saying, ‘As the Framers said in 1789,’ the way Scalia writes his opinions," adds Demleitner, who says she’s a liberal Democrat. "I was listening to one reporter this morning and I thought she was describing Attila the Hun and not Sam Alito."

Many other former clerks and colleagues back up Demleitner’s claims.

As his former clerk, would Miss Demleitner know Alito’s take on the law? Yes. As a liberal Democrat, well-established in her career, would she have any incentive to make him appear more mainstream than he is? No. Has Mr. Shapiro essentially fabricated Alito’s originalist credentials out of whole cloth? You be the judge.

Alito and the First Amendment

Following his discussion of Alito’s "dedication to originalist ideals," Mr. Shapiro enthuses over Alito’s "stellar" record on the "free exercise" and "establishment" clauses of the First Amendment.

He writes:

In one case, for example, Judge Alito ruled that a police department policy prohibiting beards worn for religious reasons but allowing beards worn for health reasons violated the "free exercise" rights of Muslim police officers.

But where is it in the Constitution that Samuel Alito can dictate internal operating policies of local police departments? It isn’t: at best, it’s part of the court-created "incorporation doctrine" which applies the Bill of Rights to the states via the Fourteenth Amendment. And why must we follow the incorporation doctrine? Not because of anything the Constitution says, but because of stare decisis. So much for originalism; so much for the bold warrior against dubious precedent.

Still, even if we accept incorporation (some originalist libertarians, such as Randy Barnett, do) it is not at all obvious that the First Amendment demands that police departments allow "free exercise" by individuals who voluntarily join them, any more than it requires private-sector employers to do so. The more obvious reading of the First Amendment is that it prohibits Congress from passing any law limiting "free exercise" by people like you and me who have no employment agreement with the government.

But Alito didn’t get into any of that, because his opinion blindly applied Supreme Court precedent.

Again, reasonable minds can disagree about whether this case — and the other First Amendment case Shapiro singles out, in which Alito forced a local school to allow a girl’s artwork to appear on its walls — was rightly decided in light of the Supreme Court’s precedent and the Constitution’s text.

But it remains unclear why Shapiro thinks these opinions are "stellar" — except to the extent he believes they will earn political points with the left.

Alito and State Power

As others have observed, Samuel Alito has spent his entire adult life working for the federal government. Here again is his resume before becoming a judge:

Law clerk, Hon. Leonard I. Garth, U.S. Court of Appeals, Third Circuit, 1976—1977

Assistant U.S. attorney, District of New Jersey, 1977—1981

Assistant to the U.S. solicitor general, U.S. Department of Justice, Washington, DC, 1981—1985

Deputy assistant U.S. attorney general, U.S. Department of Justice, Washington, DC, 1985—1987

U.S. Attorney for the District of New Jersey, 1987—1990

Except for the clerkship, each one of these positions involved nothing but full-time advocacy for maximum federal government power. That’s what U.S. Attorneys do: look for as many ways as possible to put as many people as possible in prison, as often as possible, for as long as possible.

Does that sound like the career choice of someone who would limit government from the bench? Or does it sound like someone who is going to side with government thugs against the individual more often than not?

Consider this passage from a recent Slate investigation of Alito’s decisions:

Alito sat on a dozen panels in which judges disagreed regarding a citizen’s Fourth Amendment rights. In each of those cases, Alito adopted the view most supportive of the government’s position. Alito would have upheld the strip searches of an innocent 10-year-old girl, dissenting from the opinion by the well-known civil libertarian Homeland Security Secretary Michael Chertoff. Alito crossed swords with two Reagan appointees in arguing that a jury shouldn’t decide whether a police officer lawfully allowed his men to push to the ground, handcuff, and hold at gunpoint another innocent family. That case was echoed three years later when Alito, this time writing for a majority, found that in the course of an eviction, marshals could reasonably pump a sawed-off shotgun at a family sitting around its living room.

Given Alito’s apparent lack of originalist credentials, maybe this is why Mr. Shapiro is so enthusiastic about him. After all, Mr. Shapiro is an avowed fan of the police state — witness here his defense of the idiotic and tyrannical New York City policy of randomly searching subway passengers, titled "This is a war, blockhead." He says in concluding that piece:

Myopic civil libertarians ignore the simple fact that effective law enforcement is the best way to promote civil liberties. If we live in a safe, secure country — if we rid ourselves of threats domestic and foreign — there is no need for harsh safety precautions. Habeas corpus was restored after the Civil War. Free speech protections were strengthened in the aftermath of World War I. Japanese internment ended after World War II. Temporary safety measures remain in force only as long as safety is threatened. If civil libertarians undermine such measures, they threaten our safety — and temporary measures become more and more permanent. The only way to fully restore civil liberties is to defeat our enemies.

Conclusion

Benjamin Shapiro and "the greatest president of the 21st century" want conservatives to believe that Samuel Alito is the kind of constitution-respecting originalist we arguably got in Clarence Thomas, or is at least as good as Antonin Scalia (who, by the way, proved himself to be not much of an originalist at all in his Raich v. Gonzales opinion allowing the federal government to prohibit medical marijuana use under the Commerce Clause).

The evidence, we have seen, does not support these claims. Instead, the evidence shows Alito to be exactly the sort of judge we would expect George W. Bush to appoint: in the words of his Princeton classmate Judge Andrew Napolitano, "a big government conservative who will almost always side with the government against the individual, and the federal government against the state."

There will be a lot of fighting in Washington over Alito, and it will probably involve Democrat Senators saying a lot of infuriatingly stupid things about the Constitution and the role of the Supreme Court. But, whatever they may say, let’s resist the temptation to join the fray — Judge Alito is not even close to being worthy of our efforts.

I don’t know if Alito will be confirmed — but given his lifelong commitment to the federal government, I suspect he will. I am certain, however, that regardless of who wins the political battle, liberty will lose.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

J.H. Huebert Archives

The message is, "Pay it anyway."

No, I didn’t sell out to the feds during my recently completed clerkship with the U.S. Court of Appeals. But that experience did hit me with a dose of reality that made me more certain than ever that you can’t beat the federal government at its own game, on its own turf, so you must be careful to choose your battles wisely and well.

If you try to beat the feds at their own game, you will lose.

Many people know, or know of, someone who thinks he doesn’t have to pay federal income taxes. It’s not that this person doesn’t earn any income, or has a lot of deductions, or keeps his money offshore. Instead, this person thinks he has discovered the ultimate loophole in the tax code and the income tax just doesn’t apply to him, period.

Often, people like this believe some combination of the following:

• The tax code doesn’t actually tax income, therefore I don’t owe any federal income taxes.
• The Sixteenth Amendment was never properly ratified, therefore I don’t owe any federal income taxes.
• I am a citizen of my state, and not the United States, therefore I don’t owe any federal income taxes.
• I was a U.S. citizen, but now I have become a "non-resident alien," therefore I don’t owe any federal income taxes.
• The Social Security Act established a constructive trust in my name upon my birth, and I don’t earn any income myself — my salary is actually paid to the trust, which happens to share my name — and therefore I don’t owe any federal income taxes.

Those of you who have never met these people may want to check out Brian Doherty’s excellent article going inside the movement for more details.

The tax protesters may have some interesting legal, historical, or philosophical points. Maybe, for example, the Sixteenth Amendment wasn’t properly ratified. I don’t know, and I don’t care, because I know the only thing that matters: If you don’t pay your taxes, you will be forced to pay them, and then you will go to jail. And what if you resist, physically? Then, if they deem it necessary, the feds will kill you. It’s just that simple.

No judge is going to listen to your stories about the Sixteenth Amendment, sovereignty, or constructive trusts for one minute. Why? First and foremost, because when the federal government takes anyone to court, it’s a rigged game, because agents of the federal government are both prosecutor and judge. We have "separation of powers" on paper, but the reality is that no judge is going to declare the taxes that support his paycheck unconstitutional. Consider also that every federal judge is appointed by the President of the United States. Can you think of any president during your lifetime who would appoint such a judge?

Another point to keep in mind is that the courts have heard it all before, more than once, and have summarily rejected these arguments. The IRS has helpfully cataloged some of these cases for you here. I can assure you that the legal knowledge you acquire in your self-study on this matter will not stun any of these courts such that they will suddenly change their minds. The constitution is a mere document, and not very good to begin with, so despite any false impressions your government-school civics class may have given you, the constitution is powerless to save you from the feds.

Of course, I don’t doubt that there are people out there who have gotten away with these tax schemes, and who will encourage you to do the same. And I’m sure they will come up with clever new legal theories, too. But after you read their testimonials, and hear their sophisticated-sounding arguments, look at the case law, and you will see that person after person has tried it and gone to jail. Every one of them thought the law was somehow on their side when they stopped paying taxes, and every one of them was wrong.

So let us summarize: No legal argument will magically exempt you from income taxes. Period. If it were possible, entrepreneurs would have jumped on top of it and made a killing on books explaining how to do it, and then the government would have closed the loophole.

A more useful alternative.

I don’t enjoy saying any of that. That close to 50% of a person’s labor each year is slave labor for the government is disgusting and obscene, and no one is less happy about it than I am. And just so we’re clear, I would find it obscene if it were even 1%, or %, or even one penny, because taxation is slavery, and slavery is wrong, no exceptions.

And that’s what makes the tax protester situation so sad. Here we have people who have figured out something of which most of the mindless masses remain ignorant their entire lives: that taxation is theft and slavery, and that an individual is under no moral obligation to pay it. What a tremendous breakthrough, to realize that! And what a waste when they go to jail, because they navely believed the U.S. Constitution would protect their rights.

So are we doomed to simply be ever more enslaved to our federal masters, and give them as much as they demand for the rest of our lives? Of course not.

But becoming freer isn’t easy. You may need to find another country, where the government won’t burden you with high taxes.

Most of us feel somewhat tied to the country in which we were born and raised, but as globalization progresses, more of us are going to move around more often, and as we do, governments, especially in some less developed parts of the world, will compete for us through lower taxes and less government intervention.

Websites like escapeartist.com can help you find the spot on earth that will be most pleasing and least burdensome to you. Books such as PT and PT2, by W.G. Hill, can also put you on the way to thinking about freedom far more pragmatically than the scheming tax protesters. There is a wealth of literature on this, and while it may not seem as heroic as fighting the government in court and going to jail for your beliefs, it works, unlike those other options, and is the closest realistic thing to individual secession from government available in the world today.

The most important thing you can do.

And if you don’t feel like going that far, there are, at least for now, other legal ways to lower your tax burden and strike a blow for liberty. One of them is making a tax-deductible contribution to an organization that advances the freedom philosophy, such as LewRockwell.com, or the Ludwig von Mises Institute.

Even more important than that is learning all you can about the economics and morality of liberty, and how to effectively communicate libertarian ideas. Someday, when the state collapses, the world will need a Remnant to rebuild civilization, and you cannot do your part to prepare for that day very effectively from a prison cell.

So skip the bogus tax schemes, forget about fictional constitutional rights, and focus on doing something useful for yourself and for liberty instead.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

J.H. Huebert Archives

In a recent article in these pages, Clint Bolick called on the federal government to pay for schoolchildren displaced by Katrina to attend private schools ("Kennedy Turns His Back on Katrina’s Kids," September 23).

This proposal, embraced by the Bush administration, is not only far from the kind of sound free-market ideas Mr. Bolick articulated in his days as a "libertarian litigator" with the Institute for Justice — it would also be antithetical to his laudable desire for more "school choice."

More government spending?

One is first shocked to see Mr. Bolick advocate more government spending on anything. We already have an out-of-control Congress and president. As a recent Cato Institute study by Stephen Slivinski documented, President Bush is the "biggest-spending president" since Lyndon Johnson — even if you adjust for inflation and exclude money spent on defense and homeland security.

Undaunted, Mr. Bolick argues that $1.9 billion is "a modest sum" compared to the total hurricane relief package of $200 billion.

That $1,900,000,000.00 is now a "modest sum" for new federal spending only shows just how far the country, and especially many of those who have been known for favoring the free market, has come in embracing big government. Just how many zeroes must be added to the end of a spending figure before limited government’s ostensible defenders, both in Congress and in newspaper columns, will draw the line?

To simply say "it’s an emergency" does not suffice to justify handing out billions.

President Grover Cleveland knew this, and refused on principle to sign a bill that would have given just $10,000 to Texas drought victims.

Why? Because the Constitution did not allow giving money for such things, and he believed Americans would do better to rely on "the friendliness and charity of our countrymen." He also prophetically added that "federal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our National character."

Similarly, Davy Crockett, as a Congressman, famously declared he could not vote to give money to a naval officer’s widow because, though he had "as much respect for the memory of the deceased, and as much sympathy for the sufferings of the living" as anyone, taxpayer money was simply was not his to give. He then offered to give a week of his own pay to help the widow, and urged his colleagues to do the same.

Who today will tell Congress that — no matter what disaster we may we may face — the money is just not theirs to give?

Mr. Bolick also argues that it is "discrimination" for the federal government to provide aid to some children (those who attend government schools) but not others (those at private schools). But of course this is an argument for unlimited government spending, because there will always be people who want government money and, due to some manner of discrimination, do not receive it.

Besides, is it really so invidious to "discriminate" against private schools when deciding how to spend government money? Isn’t lack of government money what makes a school private in the first place?

Keep private schools private

Indeed, there is considerable risk that giving government money — especially federal money — to private schools would fundamentally change their character, effectively killing the goose that lays the golden eggs.

Federal funding for college education, which began in the 1950s and 60s, has shown this to be so, as formerly independent private schools have demonstrated their willingness to do nearly anything to appease the government and retain their funding.

In the 1980s, when two private colleges, Grove City College and Hillsdale College, attempted to assert their independence, Congress passed (over President Ronald Reagan’s veto) the Civil Rights Restoration Act, to explicitly declare that any school (including any elementary or secondary school) that enrolls any student who receives federal aid is subject to federal regulation.

Grove City and Hillsdale — thanks to endowments and generous alumni — were able to escape government regulation by offering students wholly private aid. Almost all others, however, could not resist the lure of federal money.

Can we expect the majority of private primary and secondary schools to act any differently if, as Mr. Bolick wishes, Katrina opens the federal funding floodgates for them?

If, as we would expect, they wouldn’t turn down the money — and would thereby subject themselves to potential government control of their curricula, admissions, athletics, academic standards, and more — what then, precisely, is the point of having private schools at all?

"School choice" would undeniably help certain underprivileged children in the short term — especially Katrina victims. But a hurricane shouldn’t cause free-market adherents to abandon their principles any more than a drought caused Grover Cleveland to abandon his. And in the long run, federally funded "school choice" would prove to be no choice at all.

J. H. Huebert [send him mail] is an attorney and a freelance writer. Visit his website.

J.H. Huebert Archives

Restoring
the Lost Constitution: The Presumption of Liberty

Randy
Barnett is among the world's leading libertarian academics and lawyers,
perhaps second only to Richard Epstein in influence. In fact, Mr.
Barnett (1977, p. 15) has defended anarcho-capitalism in these very
pages, which makes his most recent book, Restoring
the Lost Constitution, most curious. In it, he attempts to legitimate
the United States government by arguing that, properly understood,
the U.S. Constitution establishes libertarianism throughout the
land by both limiting the federal government's powers and empowering
the federal government to restrain the states.

Though
well-intentioned, the book is fatally flawed. Mr. Barnett's arguments
that a monopoly government can be legitimate are unpersuasive; his
arguments that the federal government should limit its own power
are futile; and his arguments that the federal government should
impose libertarianism on the states are dangerous.

The
Governed Do Not Consent

The
author begins soundly enough, with an admirable refutation of the
arguments of others for the legitimacy of government, clearly inspired
by Lysander Spooner's The
Constitution of No Authority.1
He rightly rejects the idea that the federal government was formed
by "We the People" or with "the consent of the governed,"
and knocks down several putative claims for legitimacy based upon
"consent."

He
shows, for example, that voting rights do not create consent. A
vote for a candidate does not necessarily indicate consent to anything
the candidate may do in office – it may merely be (and almost
always is) a vote in self-defense against an even worse candidate.
Further, there is no way to choose not to "consent" through
voting because under this theory, the nonvoter is assumed to have
consented, too, by forgoing his opportunity to vote.

Mr.
Barnett also refutes arguments that one consents to a nation's government
simply by living within its borders. To argue that residency equals
consent, one must assume "that lawmakers have the initial authority
to demand your obedience or exit in the first place." The residency
argument cannot support this assumption anymore than it could be
said that a rape victim consents "simply by being there."

Mr.
Barnett also effectively disposes of the arguments of those who
say the country's founders consented on our behalf. First, the founders
themselves did not unanimously consent to our government. Second,
even if they had, they could not have consented on behalf of the
rest of us, because we did not give them that authority. Consent,
by definition, can only be given by the individual. If this were
not the case, there would be no need for, say, trial by jury. Your
representative in a state legislature or the U.S. Congress could
simply waive your rights for you. After all, they are your "duly
elected representatives."

Finally,
he shows that acquiescence does not equal consent. True, there must
be general acquiescence for a government to exist at all, but that
cannot be the same thing as consent.2 Otherwise,
even the most oppressive regime would be legitimate.

A
Legitimate State?

Despite
all this, Mr. Barnett is unwilling to give up on the idea of legitimate
government. He notes that at some level, unanimous consent of the
governed is possible – for example, in private condominium
developments such as the one in which his parents live. But because
state and federal governments control areas too large to have unanimous
consent, he writes (p. 43), "If these lawmaking authorities
are to command a duty of obedience, it must be on some grounds other
than consent of the governed." He then searches for and finds
other grounds which he believes legitimate the Constitution and
overcome Spooner's Constitution of No Authority objections.

Why
a self-described libertarian would feel a need to go down this road
at all is unclear. He has just acknowledged that unanimous consent
exists and works well in private communities. Is this not the libertarian
ideal? Perhaps he believes we need larger political units encompassing
nonconsenting parties for some compelling reason – maybe for
the provision of so-called public goods, such as police protection
or roads. But he does not present any such argument here, let alone
refute the ample literature showing such larger political units'
non-necessity. Instead, he rushes forth to make the case for the
Constitution.

To
do this, he avers that consent is not the only foundation upon which
a legitimate government may rest. A government is also legitimate,
he says, if it provides (p. 46) "procedural assurances that
the rights of the nonconsenting persons upon whom [its laws] are
imposed have been protected." Thus, a government that prohibits
the initiation of acts of force and fraud against peaceful people
is legitimate. He finds this consistent with Spooner's (1971, vol.
4, p. 143) statement, "Justice is evidently the only principle
that everybody can be presumed to agree to, in the formation
of government."

But
Mr. Barnett does not address how a government may legitimately have
a monopoly on the use of force and the provision of
defense, law, and justice, as our federal and state governments
do. Certainly he would agree that any justice system, state or private,
will be imperfect and, despite the best "procedural assurances,"
an innocent person may be wrongly convicted of and punished for
a crime. Can we not justify such a system only on the ground that
the party being punished consented to participate? And besides,
will a monopoly law-and-justice provider not be, like all socialist
enterprises, inferior to private alternatives that would exist but
for the monopolist?

Mr.
Barnett seems to simply assume that a monopoly government with the
right "procedural assurances" will be a perfect justice-dispensing
machine, or at the very least, not inferior to private (consented-to)
alternatives. Perhaps the greatest fault of his book is that it
does not even attempt to support this unstated assumption.

Proceeding
on this theory of legitimacy, Mr. Barnett argues that the U.S. Constitution,
rightly understood, establishes a legitimate government, because
it protects natural (libertarian) rights.

Limited
Federal Government

Despite
the serious problems with his ideas about governmental legitimacy,
Mr. Barnett does a fine job illustrating some of the founders' more-or-less
libertarian intentions and how they are reflected in the Constitution.
But as we shall see in a moment, good intentions count for nothing.

Mr.
Barnett begins by arguing for an originalist interpretation of the
Constitution – interpreting it as the general public would
have at the time it was written, based upon the text. That is, he
interprets the constitution according to its original meaning,
rather than its authors' original intent. Here again, his
inspiration is Lysander Spooner, who applied this method in his
1847 book, The
Unconstitutionality of Slavery.3 

If
we must have a constitution, libertarians should find Spooner/Barnett
originalism the most appealing way to interpret it. As Mr. Barnett
persuasively argues, a government operating by a fixed set of rules
seems preferable to one that can make up the rules as it goes along.
Originalism may be all the more appealing because Mr. Barnett presents
a strong argument that the originalist Constitution creates a federal
government of extremely limited powers. For example, he shows that
the "Necessary and Proper Clause" does not extend Congress's
powers beyond the few enumerated in Article I of the Constitution;
that the "lost" Ninth Amendment – which courts have
always ignored and "conservatives" such as Robert Bork
deny has any meaning at all – prevents Congress from infringing
natural rights under most circumstances; and that the Commerce Clause
has been greatly distorted to give Congress far more power than
it was ever intended to have.4

Mr.
Barnett's well-reasoned and well-supported arguments for a limited
federal government make up a large portion of the book, but I make
short shrift of them here because, despite their appeal, they are
almost entirely useless. The Ninth Amendment and the Commerce Clause
are not, as he says, "lost" – they have been in the
Constitution all along. Courts have distorted these provisions not
because judges have not had Randy Barnett to explain their true
meaning. Courts have done so because they are part of the very federal
government Randy Barnett seeks to limit. In general, judges and
those who appoint them have no reason to want to limit government.

Mr.
Barnett naïvely sees judges as somehow more trustworthy than
other government officials. He argues that courts should give less
deference to Congress than they do now because, while we once "assumed
that legislatures really do assess the necessity and propriety of
laws before enacting them," we now know better. "In recent
decades," he writes, we
have remembered the problem of faction. . . . We now understand
much better . . . than our post-New Deal predecessors . . . that
both minorities and majorities can successfully assert their interests
in the legislative process to gain enactments that serve their own
interests rather than being necessary and proper.  (p. 260)

But
one must wonder how much Mr. Barnett has learned from twentieth-century
history. Have not judges been responsible for some of the most outrageous
expansions of government power? And, after all, are judges not a
product of the same political system that gives us legislators and
presidents? What president would appoint judges who would tell him
he cannot do anything he wants? What Senators would confirm a judicial
candidate who tells them that everything they have ever done in
office is unconstitutional? The whole enterprise of libertarian
constitutional theory ignores all we have learned from public choice
economics about the incentives of government actors.

Thus,
nothing short of a libertarian revolution would be necessary for
courts to begin doing what Mr. Barnett wants them to. How could
such a revolution come about? Not by educating people about the
Constitution, but by educating them about liberty. And any good
libertarian education reveals that "limited government"
is impossible. 

Of
course, if Mr. Barnett and likeminded libertarians can persuade
the federal government that it lacks the power to do certain things,
that is to be applauded.5 But
such efforts are not only futile in the long run, they also perpetuate
the myth that "limited government" is possible if only
we put the right ideas in front of the right government officials.
This seems an unfortunate waste of talent for a powerful mind such
as Randy Barnett's.

Federal
Power over the States

Mr.
Barnett gets even more far out in his discussion of the Fourteenth
Amendment and federal power over the states. The Fourteenth Amendment
provides, among other things, that "No state shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States." Mr. Barnett believes that
with these few words the Constitution requires federal courts to
impose almost the whole libertarian program upon the states.

An
honest originalist, libertarian or not, finds several problems with
the author's view. First, it ignores arguments that the Fourteenth
Amendment was passed in violation of the original Constitution and
is therefore void (McDonald 2000, pp. 212–13). Second, it is simply
inconceivable that legislators and the public of the 1860s not only
envisioned the likes of Lawrence v. Texas,6 but
were so comfortable with this implication of their Amendment that
they did not discuss it at all. Granted, discerning original meaning
can be a rather tricky business – indeed, when talking about
terms such as "privileges and immunities" that are not
in the average layman's vocabulary, it may be difficult to distinguish
"original meaning" from "original intent," as
Mr. Barnett's originalism attempts to do. But whatever the Fourteenth
Amendment meant to its authors or nineteenth-century Americans,
it must have been something less than sanctioned sodomy across the
fruited plain.

Even
if the Fourteenth Amendment's authors did intend to "enact
Mr. Herbert Spencer's Social
Statics," and give judges the power to enforce it,
libertarians should find this undesirable. Political decentralization
was responsible for liberty flourishing in the West in the first
place. Slavery and Jim Crow laws were evil, of course, but Mr. Barnett
and some other well-meaning libertarians seem to have allowed it
to distort their perspective. Further, a powerful federal court
consisting of libertarian judges may achieve short-term good,7
but what will be done with that power once it is inevitably back
in the hands of the statists?8 We
have seen in the twentieth century just the sort of damage judges
empowered by the Fourteenth Amendment can do. Any alleged good intentions
behind the Amendment's passage did not prevent them from doing this.

And
what if we follow this libertarian centralism to its logical conclusion?
If it is proper for the federal government to impose liberty upon
the states, then it must be appropriate – indeed, even better
– for a world government to impose liberty upon everyone. Such
a view also justifies U.S. military intervention as it "liberates"
other countries. If a legitimate government needs only certain "procedural
assurances," then there may be nothing illegitimate about any
government the U.S. empire installs anywhere in the world –
just give them the right constitution (perhaps the Cato pocket edition),
and voilà.

Conclusion

Restoring
the Lost Constitution has a laudable goal, but advises
inappropriate means for achieving desirable ends. Randy Barnett's
obvious intelligence and appreciation for liberty make it all the
more disappointing to see him squander his talents trying to rescue
a document that has shown itself so incapable of protecting liberty,
and so capable of justifying offenses against it.

Notes

1. Mr. Barnett
   has made this and other Spooner works available
   online.
2. Compare
   Mises (2002, p. 46): “Only a group that can count on the
   consent of the governed can establish a lasting regime.”
3. See also
   Barnett (1977).
4. Most of
   these arguments have been made before, by Mr. Barnett and others.
   See, e.g., Epstein (1987) and Barnett (1991, 1993). And for a
   compelling libertarian analysis that looks less favorably upon
   our founders' Constitution, see Royce (1997).
5. Barnett
   himself recently argued before the Supreme Court that the Commerce
   Clause does not allow Congress to prohibit medical marijuana use,
   in Ashcroft v. Raich, No. 03-1454. As of this writing,
   the decision is pending, and court-watchers doubt the justices
   will side against the feds. See Greenhouse (2004, p. A-20).
6. In this
   2003 decision, the U.S. Supreme Court held that the Fourteenth
   Amendment bars states from prohibiting sodomy. 539 U.S. 558.
7. It certainly
   seems justifiable, from a libertarian perspective, for a litigant
   to use the federal government against his local government, if
   necessary to exercise his natural rights. But we can still object
   to the institutional arrangement.
8. On this,
   and the Fourteenth Amendment generally, see Healy's outstanding
   critique of u201Clibertarian centralism,u201D including the ideas of Randy
   Barnett, Roger Pilon, and Clint Bolick.

Bibliography

• Barnett,
  Randy E. 1997. "Was Slavery Unconstitutional Before the Thirteenth
  Amendment?: Lysander Spooner's Theory of Interpretation."
  Pacific Law Journal 29 (977).
• 1993. "The
  Original Meaning of the Necessary and Proper Clause."  University
  of Pennsylvania Journal of Constitutional Law 5 (183).
• 1991. "A
  Ninth Amendment for Today's Constitution." Valparaiso
  Law Review 26 (419).
• 1977. "Whither
  Anarchy: Has Robert Nozick Justified the State?" Journal
  of Libertarian Studies 1 (Winter): 15.
• Epstein,
  Richard A. 1987. "The Proper Scope of the Commerce Power."
   Virginia Law Review 73 (1387).
• Greenhouse,
  Linda. 2004. "States' Rights Defense Falters in Medical Marijuana
  Case." New York Times (November 30): A-20.
• Healy, Gene.
  "The
  14th Amendment and the Perils of Libertarian Centralism."
• McDonald,
  Forrest. 2000. States'
  Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence:
  University Press of Kansas.
• Mises, Ludwig
  von Mises. [1927] 2002. Liberalism:
  The Classical Tradition. Ralph Raico, trans. Auburn, Ala.:
  Ludwig von Mises Institute.
• Royce, Kenneth
  W. 1997. Hologram
  of Liberty: The Constitution's Shocking Alliance with Big Government. Austin,
  Tex.: Javelin Press.
• Spooner,
  Lysander. [1860] 1971. The
  Unconstitutionality of Slavery, rev. ed., reprinted in
  Charles Shivley, ed., The
  Collected Works of Lysander Spooner. Providence: M and
  S Press.

August
13, 2005

J.
H. Huebert [send him mail]
is an attorney and a freelance writer. Visit his website.